The Legal System of Technological Protection Measures under the WIPO Treaties, the Digital Millennium Copyright Act,

the uropean !nion Directi"es and other #ational La$s %&apan, Australia'
(y &ac)ues de Werra Doctor of Laws, University of Lausanne Admitted to the Geneva Bar LLM (Columbia Law School

!" !ntroduction""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" # !!" $y%olo&ies of e'istin& technolo&ical %rotection measures""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""( A" $echnolo&ical %rotection measures controllin& the access to the wor)s""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""( B" $echnolo&ical %rotection measures controllin& the use of the wor)s"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""* C" +elation between access and use %rotection measures""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""", !!!" $he -!./ $reaties"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 0 A" Definition of the technolo&ical %rotection measures in the -!./ $reaties"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""12 1" 34ffective5 technolo&ical %rotection measures"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""12 6" $echnolo&ical %rotection measures 3used by authors in connection with the e'ercise of their ri&hts under this $reaty or the Berne Convention5 """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 11 7" $echnolo&ical %rotection measures 3that restrict acts, in res%ect of their wor)s, which are not authori8ed by the authors concerned or %ermitted by law5""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""16 B" !ssues not dealt with in the -!./ $reaties""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""17 1" Does the re9uirement of 3ade9uate le&al %rotection5 (art" 11 -C$ call for a co%yri&ht s%ecific anti:circumvention re&ulation;"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 17 6" -hat conduct is %rohibited (act of circumvention and<or business of traffic)in& in circumventin& devices =%re%aratory activities> ;""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 1# 7" -hat ty%es of remedies must be made available to the co%yri&ht holders;""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""1# !?" United States""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 1( A" !ntroduction""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 1( B" Circumvention of a technolo&ical measure %rotectin& the access to the wor)"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""1* 1" Act of circumvention"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 1* a Does the abuse of an identification %rocedure constitute a circumvention of a technolo&ical %rotection measure; """"1@ b Does the use of a 3dee% lin)5 constitute a circumvention of a technolo&ical %rotection measure;""""""""""""""""""""""""""""""1, 6" $he rulema)in& %rocedure""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""10 a !s this rulema)in& %rocedure the a%%ro%riate way to re&ulate the balance of interests standin& at the core of co%yri&ht law;""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 62 b !s it wise or even %racticable to base an e'em%tion system on 3classes of wor)s5;"""""""""""""""""""""""""""""""""""""""""""""""""""""61 c -hat about the %ractical use of the e'em%tions once &ranted;""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""66 7" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""66 C" Circumvention of technolo&ical measures %rotectin& the use of the wor)s """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6# D" Limited set of e'ce%tions """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 6( ?" 4uro%ean Union"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 6* A" Co%yri&ht in the !nformation Society Directive """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6@ 1" Definition of technolo&ical %rotection measures """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6@ 6" Act of circumvention"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 60 7" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""72 #" 3?oluntary measures5 used to define the sco%e of co%yri&ht %rotection"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""72 (" Monitorin& of the a%%lication of the C!SD and amendments %rocedure""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""71 B" Directive on Conditional Access"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""76 1" .rotection of conditional access to a service"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""76 6" !llicit device &ivin& unauthori8ed access"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""77 7" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""77 #" +elation between the C!SD and the CAD"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""77 ?!" Aa%an""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 7# A" Co%yri&ht law """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 7# B" Anti:Unfair Com%etition Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7( 1" Definition of technical restriction means""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7( 6" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7( ?!!" Australia"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 7@ A" Definition of technolo&ical %rotection measures"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7@ B" Definition of the circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7, C" !nfrin&in& activity"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 7, D" 4'ce%tions to the %rohibition of circumvention"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7, ?!!!" Conclusion"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 70

I* Introduction+
!n the di&ital era, technolo&ical %rotection measures are viewed as an effective means to %rotect the co%yri&ht owners a&ainst infrin&ements of their wor)s1" As such (i"e" merely as a technical means to %rotect wor)s a&ainst %otential co%yri&ht infrin&ements , technolo&ical %rotection measures do not need any le&al re&ulation or any le&al %rotection" Bowever, because all technolo&ical %rotection measures can eventually be defeated 6, the need for le&al %rotection a&ainst their circumvention has been felt" As a conse9uence, le&al %rotection a&ainst the circumvention of technolo&ical %rotection measures has been ado%ted in the -!./ Co%yri&ht $reaty (-C$ and in the -!./ .erformances and .hono&rams $reaty (-..$ , both si&ned in Geneva in December 100*7" As a result of this, co%yri&ht owners now enCoy three cumulative layers of %rotectionD the first layer is the basic legal %rotection of co%yri&ht law" $he second layer is the technical %rotection of the wor)s achieved by technolo&ical %rotection measures" $he third and new layer is the legal %rotection a&ainst the circumvention of the technolo&ical %rotection measures introduced by the -!./ $reaties#" $he %ur%ose of this %a%er is to define the meanin& of 3technolo&ical %rotection measures5" $he first %art of this %a%er will %resent the two cate&ories of e'istin& technolo&ical %rotection measures while %rovidin& some %ractical e'am%les of these technolo&ies, and will also illustrate that these cate&ories can be combined" $he second %art will analy8e the %rovision of the -!./ $reaties relatin& to technolo&ical %rotection measures, whereas the third %art will %resent different national le&islations (U"S"A,
E

All !nternet citations were current as of March 16, 6221F the research for this %a%er has been s%onsored by a &rant from the Swiss Gational Science HoundationF the author can be reached atD Cw@0(Icolumbia"edu" 1 /n the 9uestion of intellectual %ro%erty in the di&ital era, one can refer to the e'cellent %ublication of the Gational +esearch Council, $he Di&ital DilemmaD !ntellectual .ro%erty in the !nformation A&e (6222 available atD www"na%"edu<boo)s<27202*#00*<html" 6 ." Samuelson, $he U"S" Di&ital A&enda at -!./, 7@ ?a" A" !ntJl L" 7*0, at #12 (100@ D 3-hat one technolo&y can do, another can &enerally undo5F see also the %roCect launched by the Secure Di&ital Music !nitiative (www"sdmi"or& which has or&ani8ed a com%etition for hac)ers in Se%tember 6222 in order to test the technolo&ical %rotection measures they have develo%ed to %rotect the musical wor)s in di&ital format at www"sdmi"or&<%r<B+KSe%tK1,K6222K.+"htmF as a result of this com%etition, the tested technolo&ical %rotection measures have been defeated, see www"sdmi"or&<%r<DCKGovK6,K6222K.+"htm" 7 $hese $reaties will be referred as to asD 3the -!./ $reaties5F these $reaties have not entered into force yet, as the threshold of ratifications (72 has not been reached (see art" 62 -C$<art" 60 -..$ " # $his new le&al %rotection is therefore said to 3electrify5 the fence of technolo&ical %rotection measures, see S" Dussolier, 4lectrifyin& the HenceD $he Le&al .rotection of $echnolo&ical .rotection Measures for .rotectin& Co%yri&ht, 61 4uro%ean !ntellectual .ro%erty +eview (4!.+ , 6,( (1000 "

( 4uro%ean Union, Aa%an and Australia that have already im%lemented or are about to im%lement the %rovisions of the -!./ $reaties" !t is im%ortant to mention that the im%lementin& le&islations deserve %articular attention, not only because the %rovision in the -!./ $reaties is very &eneral or even unclear (, but, more basically, because these $reaties only define minimal standards of %rotection which can be e'tended by national le&islations*"

II* Typologies of e,isting technological protection measures

Hirst of all, and as a %reliminary warnin&, it is necessary to ma)e clear that this overview of e'istin& technolo&ical %rotection measures is not (and cannot be com%rehensive because of the constant evolution of the technolo&ies@" !n s%ite of this, technolo&ical %rotection measures have usually be defined as fittin& into two cate&ories,D technolo&ies controllin& access to the wor)s (A and technolo&ies controllin& the use of the wor)s (B "

A* Technological protection measures controlling the access to the $or-s

$his ty%e of technolo&ical %rotection measure %revents any unauthori8ed %erson to &ain access to a co%yri&ht %rotected wor)" A technolo&y %rotectin& the access to a di&ital wor) can be com%ared to loc)in& u% the door of a room in which a wor) (a boo) is located" $o continue the analo&y, 3=$>he act of circumventin& a technolo&ical %rotection measure %ut in %lace by a co%yri&ht owner to control access to a co%yri&hted wor) is the electronic e9uivalent of brea)in& into a loc)ed room in order to obtain a co%y of the boo)"50 $echnolo&ies %rotectin& access can be im%lemented in different ways12" !n the on:line environment, access to the %rotected content is fre9uently controlled by an identification
( *

As it will be seen below, !!!" $homas C" ?inCe, Co%yri&ht !m%erilled;, 61 4"!"."+" 106, 621 (1000 " @ As accurately e'%ressed in a %a%er of the !nternational !ntellectual .ro%erty Alliance (!!.A entitled 3$he Anti: Circumvention /bli&ations of the -!./ $reatiesD $heir !m%lementation in Gational Law5 of March 1000, at #D 3in the technolo&y of electronic commerce, the only constant is chan&e5" , As it will be seen below (!!" C" , the distinction between access and use can lead to difficulties, because it can occur that these two ty%es of technolo&ies are combined or even that they are mer&ed in one sin&le technolo&y" 0 B"+" +e%" Go" 12(:((1, %t" 1, at 1@ (100, , as 9uoted by David Gimmer, A +iff on Hair Use in the Di&ital Millennium Co%yri&ht Act, 1#, U" .enn" L" +" *@7, *,* (6222 " 12 See, for e'am%le, Storm Impact, Inc. v. Software of the Month Club , 17 H" Su%%" 6d @,6 (G"D" !ll 100@ (shareware allowin& access to only a %art of a com%uter &ame, the access to the whole &ame bein& &iven only to re&istered users than)s to a com%uter loc) and )ey system F see also the 3Secret Bandsha)e5 identification system in the Realnetworks, Inc. v. Streambox, Inc., 6222 U"S" Dist" L4L!S 1,,0 (-"D" -ash" 6222 , e'%lained at E*"

* %rocedure11" $he access control can also occur in the s%here of the end user without his active intervention (for cable $? services, the access control is reali8ed throu&h the use of a set to% bo', a blac) bo', which decry%ts the encry%ted si&nal received over the cable networ) " Many of the technolo&ies controllin& access are based on a system of encry%tion" 4ncry%tion means di&ital scramblin& of the content to %revent its use unless descrambled (decry%ted with a %ro%er )ey" $he )eys necessary to decry%t are delivered only to authori8ed users and<or authori8ed e9ui%ments16" 4ncry%tion technolo&y is for instance used for satellite broadcastin&, includin& conditional access channels, as well as for Di&ital ?ersatile Dis)s (D?Ds " $he business of %rovidin& technolo&ical %rotection systems has been e'%andin& alon& with the s%ectacular develo%ment of communication technolo&ies17" Bere are a few e'am%les of services and %roducts e'istin& on the mar)et that are based on access control technolo&iesD the 3Smartcard5 system develo%ed by Mudels)iN to decry%t encry%ted $? %ro&rams1#F the 3CDMey ControlN5 system used by GracenoteN which allows the buyers of a CD to download an additional 3bonus trac)5 from the !nternet with an identification )ey 1(F the 3Di&ital Cinema5 %roCect develo%ed by OualcommN based on both com%ression and encry%tion technolo&ies 1*F the different services of +eci%rocalN offerin& fle'ible distribution models to on:line %ublishers1@"

.* Technological protection measures controlling the use of the $or-s

$echnolo&ical %rotection measures controllin& the use of the wor)s are sometimes referred to as 3anti:co%y5 %rotection measures1," $his terminolo&y is not entirely accurate, because these technolo&ies can %rotect not only a&ainst the mere co%yin& of the wor), but also a&ainst acts

11 16

!dentification with username and<or %assword" See Dean S" Mar)s<Bruce B" $urnbull, $echnical .rotection MeasuresD $he !ntersection of $echnolo&y, Law and Commercial Licenses, 66 4"!"."+" 10,, 616 (6222 " 17 $he %ur%ose of some of these technolo&ical measures fre9uently &oes beyond the %rotection of co%yri&hted wor)s, and aims at %rovidin& a secure framewor) for e:commerce transactions, see for instance www"verisi&n"com" 1# www")udels)i"com<na&racard<%a&es<smartdtv"htmD Ga&raCard smart cards contain an electronic chi% which is %ro&rammed to o%erate as a security barrier, &rantin& or refusin& access to a &iven service" !n a di&ital %ay television environment, the decoder<smart card %air is the element, which enables the subscriber to receive, alon& with the scrambled si&nals, the )eys allowin& descramblin& of the si&nal" 1( www"&racenote"com<cd)eyabout"html" 1* www"9ualcomm"com<.rod$ech<di&italcinema<F see also the website of the Di&ital Cinema 6221 Conference and 4'%o s%onsored by the Gational !nstitute of Standards and $echnolo&y atD htt%D<<di&italcinema"nist"&ov<" 1@ www"reci%rocal"com which offers a system in which the clients can %lay a video or a music once, or several times : for a hi&her fee : and are offered an o%tion to %urchase a %ermanent license" 1, Mar)s<$urnbull, at 100 s"F see also *( Hed" +e&" at *#((@D 3the ty%e of technolo&ical measures addressed in section 1621(b includes co%y:control measures and other measures that control uses of wor)s that would infrin&e the e'clusive ri&hts of the co%yri&ht owner" $hey will fre9uently be referred to herein as co%y:controls"5

@ infrin&in& other e'clusive ri&hts of the co%yri&ht owners10" Hor instance, a multimedia %roduct (CD:+om can be %rotected by a technolo&ical measure in order to %revent not only its mere du%lication, but also its use on a networ)62" A technolo&ical %rotection measure for audio (and video content could also be develo%ed in order to %revent the streamin& of these wor)s on the !nternet" Because streamin& 3does not co%y the music onto the listenerJs hard drive5 61, but 3merely allows her to hear it566, such a technolo&y would mainly %revent the infrin&ement of the ri&ht of %ublic %erformance and the ri&ht of distribution, and not the ri&ht of re%roduction67" As a conse9uence, this ty%e of technolo&ical %rotection measures should &enerally be defined as 3use controls56#" Bowever, copy %rotection measures have been u% to now the most widely a%%lied use control %rotection measures6(" !n the U"S", anti:co%y technolo&ical %rotection measures have been enacted in the Serial Co%yri&ht Mana&ement System (SCMS as %art of the 1006 Audio Bome +ecordin& Act (PP 1221 Q 1226 of the Co%yri&ht Act " $his system has the %ur%ose to ma)e sure that only master co%ies can be used as a basis for co%yin&, while %rohibitin& the ma)in& of further co%ies from any e'istin& co%y6*" $he U"S" Di&ital Millennium Co%yri&ht Act (DMCA, P 1621 () has introduced another anti co%yin& %rotection mechanism (which is in force since A%ril 6,, 6222 6@ entitled 3automatic &ain control co%y control technolo&y5 which has been develo%ed by and is

10

Under U"S" co%yri&ht law, the technolo&ical %rotection measures can %rotect all the e'clusive ri&hts mentioned in P 12* of the Co%yri&ht ActF these technolo&ies have therefore been defined as 3mesures techni9ues %rotR&eant les droits dJauteur5 (A" Strowel<S" Dussolier, La %rotection lR&ale des systSmes techni9ues, (-!./ Document, -C$: -..$<!M.<6 available atD www"wi%o"or&<fre<meetin&s<1000<wctKw%%t<doc<im%00K6"doc, at 6 " 62 Mamiel Moelman<Gatali Belber&er, .rotection of $echnolo&ical Measures (!nstitute of !nformation Law ed" , Amsterdam 100,, at #" 61 A M Recor!, Inc. v. "apster, Inc", 11# H" Su%%" ,0* (G"D" Calif" Au&" 12, 6222 , at 020F see also Realnetworks, Inc. v. Streambox, Inc., 6222 U"S" Dist" L4L!S 1,,0 (-"D" -ash" 6222 , at E7" 66 A M Recor!, Inc. v. "apster, Inc", 11# H" Su%%" ,0* (G"D" Calif" Au&" 12, 6222 , at 020" 67 4ven by assumin& that a +AM co%y is made in the com%uter of the end user durin& the streamin& %rocedure, such a tem%orary co%y should not be held infrin&in&, because of the very transient nature of the co%y made in the course of streamin&F on this issue, see -endy A" .ollac), GoteD $unin& !nD the Huture of Co%yri&ht .rotection for /nline Music in the Di&ital Millennium, *, Hordham L" +ev" 6##(, 6#(( (6222 (statin& that this 9uestion 3remains unsettled5 " 6# 3$he term Tuse controlJ is used as a shorthand term for technolo&ical measures that effectively %rotect ri&hts of co%yri&ht owners under title 1@ =U> 3, *( Hed" +e&" at *#(*," 6( Moelman<Belber&er, at #F see the 3Co%y Switch5 function in the Realnetworks, Inc. v. Streambox, Inc., 6222 U"S" Dist" L4L!S 1,,0 (-"D" -ash" 6222 , at E*:E@" 6* .rohibition of multi:&eneration co%yin&F on the definition of 3di&ital audio recordin& device5 (P 1221 (7 , see Recor!ing In!. Ass#n of Am. v. $iamon! Multime!ia Sys., Inc", 1,2 H" 7d 12@6 (0th Cir, 1000 " 6@ 4i&hteen months after the enactment of the DMCA (/ctober 6,th 100, %ursuant to P 1621 () (1 (A "

, )nown as 3Macrovision56," $his technical %rotection measure %revents the ma)in& of co%ies of s%ecifically defined transmission of audiovisual wor)s (i"e" audiovisual wor)s dis%layed on %ay $?F %ay:%er viewsF videocassettes by two %ractical means" 4ither this technolo&y com%letely %revents the ma)in& of co%ies of such audiovisual %roducts or it does intentionally deteriorate the 9uality of the recordin& by im%lementin& a si&nal on the recordin& 3that, when %layed bac), e'hibits a meanin&fully distorted or de&raded dis%lay5 (P 1621 () (# (c (ii "

C* /elation (et$een access and use protection measures

Some technolo&ical %rotection measures can control both the access and the use of the wor)s" $his is for instance the case of the Content Scramble System (CSS , which is the encry%tion: based technolo&ical %rotection measure used for D?Ds" $he CSS re9uires the use of a%%ro%riately confi&ured hardware (such as D?D %layers or com%uters to decry%t, unscramble and %lay bac) motion %ictures on D?Ds60" As a result, CSS has been 9ualified as both an 3access control and co%y %revention system for D?D572" $he overla%%in& of the two ty%es (access<use of technolo&ical %rotection measures does not have any %ractical im%ortance, unless a le&al distinction is made between them71" $he DMCA %recisely ma)es a distinction between the circumvention of access control %rotection measures, which is %rohibited by P 1621 (a (1 , and the circumvention of use control measures, which is not %rohibited (only the business<traffic in circumventin& technolo&ies is %rohibited by P 1621 (b (1 " Difficulties mi&ht therefore arise for technolo&ical %rotection measures that 9ualify as both access and use control systems" Hor such dual technolo&ical %rotection measures indeed, if a lawful circumvention of the co%y %rotection function cannot se%arately be accom%lished without also unlawfully circumventin& the access %rotection, the dual system (access<use control ado%ted by P 1621 would be seriously undermined" $his %otential %roblem has been identified by the Librarian of Con&ress in the course of the rulema)in& %rocedure underta)en under the DMCA 76D 3$he mer&er of technolo&ical measures that %rotect access and co%yin& does not a%%ear to have been antici%ated by Con&ress" Con&ress did create a distinction between the conduct of circumvention of access controls and the conduct of circumvention of use controls by %rohibitin& the former while %ermittin& the latter, but neither
6, 60

See the technical descri%tion at www"macrovision"com<ac%"html" %niversal City Stu!io Inc. v. Reimer!es , 111 H" Su%%" 6d 60# (S"D"G"V" 6222 , at 72," 72 %niversal City Stu!io Inc. v. Reimer!es , 111 H" Su%%" 6d 60# (S"D"G"V" 6222 , at 72," 71 Beside the DMCA, the Aa%anese le&islation is also based on such a distinction, see ?! below" 76 /n this rulema)in& %rocedure, see below !?"B"6"

0 the lan&ua&e of section 1621 nor the le&islative history addresses the %ossibility of access controls that also restrict use" !t is unclear how a court mi&ht address this issue" !t would be hel%ful if Con&ress were to clarify its intent, since the im%lementation of mer&ed technolo&ical measures ar&uably would undermine Con&ressJs decision to offer dis%arate treatment for access controls and use controls in section 1621" At %resent, on the current record, it would be im%rudent to venture too far on this issue in the absence of con&ressional &uidance" $he issue of mer&ed access and use measures may become a si&nificant %roblem" $he Co%yri&ht /ffice intends to monitor this issue durin& the ne't three years and ho%es to have the benefit of a clearer record and &uidance from Con&ress at the time of the ne't rulema)in& %roceedin& =under P 1621 (a >"577 !t is difficult to see whether the le&al distinction made between access and use of the wor)s can be maintained in the future" !n any case, it a%%ears that a re&ulation, li)e the DMCA, which ma)es a distinction between access control and use control technolo&ical %rotection measures is not 3technolo&y neutral57# and mi&ht %rove difficult to a%%ly in %ractice"

III*

The WIPO Treaties

!n order to understand the %resent wordin& of the %rovision on technolo&ical %rotection measures which has eventually been enacted in the -!./ $reaties, it is first necessary to consider the historical evolution of this %rovision" Article 17 (7 of the Basic %ro%osal7( entitled 0=/>bli&ations concernin& $echnolo&ical Measures5 defined technolo&ical %rotection measures as 3any %rocess, treatment, mechanism or system that %revents or inhibits any of the acts covered by the ri&hts under this $reaty5" $he main element of this definition is that technolo&ical %rotection measures are defined by their purpose, which is to %revent or inhibit any infrin&ement of co%yri&ht law" $he Basic %ro%osal thus ado%ts a functionalist definition of the technolo&ical %rotection measures" $his is an efficient way to re&ulate technolo&y:related issues, because of the constant evolution of this field" $his a%%roach, based on the fundamental %rinci%le that technolo&y:related re&ulations should remain 3technolo&y neutral57*, has been &enerally followed by national le&islators im%lementin& the -!./ $reaties"
77 7#

*( Hed" +e&" at *#(*," /n this conce%t, see below !!!" 7( Basic .ro%osal for the Substantive .rovisions of the $reaty on Certain Ouestions Concernin& the .rotection of Literary and Artistic -or)s to be Considered by the Conference, %re%ared by the Chairman of the Committee of 4'%erts on a .ossible .rotocol to the Berne Convention (-!./ doc" C+G+<DC<# of Au&ust 72, 100* "

12 Durin& the di%lomatic conference held in Geneva in December 100*, which led to the ado%tion of the -!./ $reaties, an amendment to re%lace Article 17 of the Basic .ro%osal was %ro%osed by several countries7@" $his amendment defined the technolo&ical measures as technolo&ies 3that are used by ri&hts holders in connection with the e'ercise of their ri&hts under this $reaty and that restrict acts, in res%ect of their wor)s, which are not authori8ed by the ri&hts holders concerned or %ermitted by law"5 $his wordin& was ado%ted in the final te't of the -C$ (with minor amendments " %rovides that7,D Contractin& .arties shall %rovide ade9uate le&al %rotection and effective le&al remedies a&ainst the circumvention of effective technolo&ical measures that are used by authors in connection with the e'ercise of their ri&hts under this $reaty or the Berne Convention and that restrict acts, in res%ect of their wor)s, which are not authori8ed by the authors concerned or %ermitted by law" Art" 1, -..$ has ado%ted a similar wordin& with res%ect to the ri&hts of %erformers and %roducers of %hono&rams70" Given that no detailed definition of technolo&ical %rotection measures is &iven in the -!./ $reaties (or in any other -!./ official documents #2, the national le&islators enCoy an im%ortant freedom in the im%lementation of art" 11 -C$#1, as lon& as they &rant a sufficient level of %rotection to technolo&ical %rotection measures" Before turnin& to national laws, it is however im%ortant to analy8e more %recisely the different elements of the definition of the technolo&ical %rotection measures made in art" 11 -C$" Art" 11 -C$ entitled 3=/>bli&ations concernin& $echnolo&ical Measures5

A* Definition of the technological protection measures in the WIPO Treaties

1* 0 ffecti"e2 technological protection measures $he first element to be analy8ed in the definition of art" 11 -C$ is the word 3effective5" As stated by commentators, 3what e'actly constitutes an TeffectiveJ measure is unclear"5#6
7*

See ." Samuelson, Hive Challen&es for +e&ulatin& the Global !nformation Society, at www"sims"ber)eley"edu<W%am<%a%ers<(challen&esKfeb66Kv6(final "doc, at @F Moelman<Belber&er, at 0" 7@ /n this issue, see $homas C" ?inCe, $he Gew Co%yri&ht $reatyD A Ba%%y +esult in Geneva, 10 4"!"."+" 67( (100@ " 7, See www"wi%o"int<treaties<i%<co%yri&ht<co%yri&ht"html" 70 Given the similarity between art" 11 -C$ and art" 1, -..$, reference will only be made to art" 11 -C$ in this %a%er" #2 !t is worth mentionin& that no statement about art" 11 -C$ has been made in the A&reed Statements Concernin& the -!./ Co%yri&ht $reaty ado%ted by the Di%lomatic Conference on December 62, 100*" #1 S" Dussolier, at 602" #6 Moelman<Belber&er, at 0"

11 Some have ar&ued that the effectiveness re9uirement was inserted in order to ma)e sure that technolo&ical %rotection measures which can be too easily circumvented #7 or which can even be circumvented 3by accident5 should not be le&ally %rotected##" !t has also been noted that technolo&ical %rotection measures that would indeed be com%letely efficient#(, meanin& that they could not be circumvented at all, do not need any le&al %rotection#*" A %ossible e'%lanation for the introduction of the 3effectiveness5 re9uirement in art" 11 -C$ is that some ne&otiatin& %arties (in %articular the United States wanted to be able to challen&e forei&n national le&islations for the case that these le&islations would not offer a sufficient level of %rotection to technolo&ical %rotection measures#@" !n any case, due to the uncertainty surroundin& its meanin&, the term 3effective5 has been defined Q in various ways : in several national le&islations im%lementin& art" 11 -C$#," 3* Technological protection measures 0used (y authors in connection $ith the e,ercise of their rights under this Treaty or the .erne Con"ention2 $he second element of the definition of the technolo&ical %rotection measures made in art" 11 -C$ is that they must be 3used by authors in connection with the e'ercise of their ri&hts under this $reaty or the Berne Convention5" $his means that the le&al %rotection of technolo&ical %rotection measures can be &ranted only to technolo&ies used by ri&hts holders #0 in connection with the e'ercise of a ri&ht %rotected by co%yri&ht law(2" !t results from this re9uirement that technolo&ical %rotection measures %rotectin& data that are not %rotected under co%yri&ht law(1 or %rotectin& wor)s that are in the %ublic domain (6 do not fall
#7

AndrR Lucas, Droit dJauteur et numRri9ue, .aris 100,, 6@# (X =U> le droit nJa %as Y venir au secours de celui 9ui nJutilise mZme %as toutes les ressources de la techni9ue" [ ## Moelman<Belber&er, at 0" #( !n this res%ect, it can be noted that 3effective5 is used twice in art" 11 -C$, first to 9ualify the le&al remedies (3effective le&al remedies5 and second to 9ualify the technolo&ical measures (3 effective technolo&ical measures5 (em%hasis added " #* %niversal City Stu!io Inc. v. Reimer!es , 111 H" Su%%" 6d 60# (S"D"G"V" 6222 , at 71," #@ ." Samuelson, $he U"S" Di&ital A&enda at -!./, 7@ ?a " !ntJl L" 7*0, at ##( (100@ " #, See the definitions made in the DMCA (!? and in the 4uro%ean Directive (?"A"1" below" #0 4ven if art" 11 -C$ does only e'%ressly refer to 3authors5, this does not e'clude the subse9uent ri&ht holders from enCoyin& the %rotection &ranted by this %rovision, in the same way as all the other %rovisions of the -C$ (and of the other international co%yri&ht treaties, in %articular the Berne Convention &rantin& s%ecific e'clusive co%yri&hts do also only refer to authors" (2 Moelman<Belber&er, at 0:12, considerin& that technolo&ical %rotection measures must be used by authors 3to e'ercise co%yri&hts"5 (1 Hor instance, in the United States, a mere 3sweat of the brow5 com%ilation of data is not sufficiently ori&inal to be %rotected by co%yri&ht law after the &eist Su%reme Court decision in 1001 (#00 U"S" 7#2 " (6 A difficult issue arises when a %ublic domain wor) is \wra%%ed u%\ in a new %rotected wor)" $his %roblem has been identified by Aud&e Ma%lan in the Universal City Studio case, 111 H" Su%%" 6d, at 77, n" 6#(D \=U> the

16 within the sco%e of a%%lication of art" 11 -C$, because these technolo&ical %rotection measures are not used by authors 3in connection with the e'ercise5 of a co%yri&ht" 4* Technological protection measures 0that restrict acts, in respect of their $or-s, $hich are not authori5ed (y the authors concerned or permitted (y la$2 Art" 11 -C$ finally re9uires technolo&ical %rotection measures to be used in order to 3restrict acts, in res%ect of their wor)s, which are not authori8ed by the authors concerned or %ermitted by law"5 A literal inter%retation of art" 11 -C$ im%lies to consider that the last two conditions are cumulativeD technolo&ical %rotection measures must both be 3used by authors in connection with the e'ercise of their ri&hts under this $reaty or the Berne Convention5 an! 3restrict acts, in res%ect of their wor)s, which are not authori8ed by the authors concerned or %ermitted by law"5 $his means that is not enou&h that technolo&ical %rotection measures are used 3in connection with the e'ercise5 of a co%yri&ht" !n addition to this, technolo&ical %rotection measures must also restrict acts that are %rotected by co%yri&ht law in order to be within the ambit of art" 11 -C$ (7" As a conse9uence, circumventin& a technolo&ical %rotection measure in order to use a wor) while benefitin& from one of the e'ce%tions to co%yri&ht (for instance for fair use %ur%oses
(#

will not

be %rohibited by art" 11 -C$((" $his means that only the circumvention of technolo&ical %rotection measures for infringing purposes will fall within the sco%e of art" 11 -C$(*" $he %ur%ose of this third re9uirement is to ma)e sure that there is a conver&ence between the

encry%tion of such a wor) =a %ublic domain wor)> with a new %reface or introduction mi&ht result in a claim to co%yri&ht in the entire combination" !f the combination then were released on D?D and encry%ted, the encry%tion would %reclude access not only to the co%yri&hted new material, but to the %ublic domain" As the DMCA is not yet two years old =his decision was filed on Au&ust 1@, 6222>, this does not yet a%%ear to be a %roblem, althou&h it may emer&e as one in the future"\F more &enerally, this issue relates to the %rotection of 3thin co%yri&ht5 wor)s which are defined as 3wor)s consistin& %rimarily (but not entirely of matter un%rotected by co%yri&ht, such as U"S" &overnment wor)s or wor)s whose term of co%yri&ht %rotection has e'%ired, or wor)s for which co%yri&ht %rotection is TthinJ, such as factual wor)s5, *( Hed" +e&" at *#(**F for this ty%e of wor)s, the dan&er has been identified that a stiff %rotection a&ainst circumvention would have the conse9uence to create a new le&al %rotection for material non %rotected by co%yri&htF in s%ite of this ar&ument, no s%ecific e'em%tion on the %rohibition of circumvention has been &ranted by the Librarian of Con&ress in the course of the rulema)in& %rocedure of the DMCA, see *( Hed" +e&" *#(**F on this %rocedure, see below !?"B"6" (7 Mamiel Moelman, A Bard Gut to Crac)D $he .rotection of $echnolo&ical Measures, 66 4"!"."+" 6@6 (6222 D 3/nly a&ainst circumvention of a technolo&ical measure which restricts an act not %ermitted by the law must %rotection be %rovided5" (# As &enerali8ed by art" 12 -C$ (three ste%s test " (( Lucas, at 6@1" (* Moelman<Belber&er, at 6@"

17 res%ective sco%es of %rotection of technolo&ical %rotection measures and of co%yri&ht law(@" !t should however be noted that this inter%retation is not undis%uted(," $he im%ortance of this third re9uirement can be %erceived in connection with technolo&ical %rotection measures which %rotect business methods (for instance the &eo&ra%hical distribution of wor)s (0" 4ven if these technolo&ies can be considered to meet the second re9uirement *2, they will not meet the third one, because they do not %rotect any ri&ht &ranted by co%yri&ht"

.* Issues not dealt $ith in the WIPO Treaties

1* Does the re)uirement of 0ade)uate legal protection2 %art* 11 WCT' call for a copyright specific anti6circum"ention regulation7 Art" 11 -C$ does not s%ecifically re9uire the anti:circumvention re&ulation to be inte&rated in the co%yri&ht le&islation" As a conse9uence, the Contractin& states are free to im%lement this %rotection in any ty%e of le&islations*1D for instance, in com%uter crime and<or unfair com%etition le&islations*6"

(@

?inCe, at 621D 3By focusin& on acts facilitatin& infringement, the -!./ %rovision assures that the s%here of a%%lication of the circumvention %rovision corres%onds to that of co%yri&ht infrin&ement =U>5" (, Some s%ecialists consider that art" 11 -C$ re9uires %rotectin& ri&ht holders a&ainst the circumvention of access %rotection measures, thus admittin& that art" 11 -C$ &rants a ri&ht of access to ri&ht holders" (0 /ne e'am%le of this )ind of technolo&ical %rotection is the re&ion codin& of D?Ds, which has \the %ur%ose to %revent the mar)etin& of D?Ds of a motion %icture in a re&ion of the world where the motion %icture has not yet been released in theatres, or is still bein& e'hibited in theatres\, *( Hed" +e&" *#(*0F this mi&ht cause a %roblem because re&ion codin& %revents for instance le&itimate U"S" users from %layin& D?Ds which were %urchased abroad (and encoded with forei&n re&ion codes on their machines that are encoded to %lay only D?Ds with U"S" re&ion codin&F therefore, it has been ar&ued (in the course of the rulema)in& %rocedure set u% by the DMCA that it should be lawful to circumvent this re&ion codin& technolo&ical %rotection measureF the Librarian of Con&ress however did not &rant an e'ce%tion to the %rohibition of circumvention and stated that \=S>ince the re&ion codin& of audiovisual wor)s on D?Ds serves le&itimate %ur%oses as an access control, and since this codin& encoura&es the distribution and availability of di&ital audiovisual wor)s, on balance, the benefit to the %ublic e'ceeds the de minimis harm alle&ed at this time" !f, at some time in the future, material is available only in di&ital format %rotected by re&ion codes and the availability of alternative %layers is restricted, a more com%ellin& case for an e'em%tion mi&ht be made\, *( Hed" +e&" at *#(*0F on this rulema)in& %rocedure, see below !?"B"6" *2 $hey are used by authors 3in connection with the e'ercise of5 their co%yri&ht" *1 Moelman<Belber&er, at 61F Lucas, at 6@#" *6 As an e'am%le, the Dutch Co%yri&ht Advisory Board considered (in 100, that art" 11 -C$ does not obli&e Dutch law to be chan&ed, since technolo&ical %rotection measures are already %rotected, inter alia, by %rovisions on com%uter crime and unfair com%etition law, see Moelman<Belber&er, at 67 n" 12#F more recently, the Dutch Minister of Austice has e'%ressed concerns over %ro%osed Co%yri&ht Directive in a letter to .arliament dated May 12, 1000, available at www"ivir"nl<.ublicaties<en&vert1"docF in any event, the Dutch authorities will have to im%lement the re9uirements of the 4uro%ean DirectiveF see below ?"A"

1# 3* What conduct is prohi(ited %act of circum"ention and8or (usiness of traffic-ing in circum"enting de"ices 9preparatory acti"ities:'7 $his is a fundamental 9uestionD which act accom%lished in connection with the circumvention of technolo&ical %rotection measures should be %rohibited and conse9uently who should be liable; $here are three a%%roachesD the act of circumvention itself (the circumventer should be liable F the business'trafficking in circumventin& technolo&ies (the %erson who &ives<sells to other %eo%le the means to circumvent should be liable declared unlawful" $his 9uestion is not answered by art" 11 -C$" As mentioned by a scholar, 3=->hether the -C$ actually re9uires the tar&etin& of the act of circumvention a technolo&ical measure is debatable" .erha%s Tade9uate le&al %rotectionJ a&ainst circumvention for the %ur%ose of Article 11 of the -C$ can be %rovided by aimin& at the %roduction and distribution of circumvention:enablin& devices"5*# Some commentators consider on the contrary that art" 11 -C$ %rohibits only the act of circumvention, and not the business of traffic)in& in circumventin& technolo&ies *(" By com%arison, the first version of the -C$ (i"e" the Basic .ro%osal outlawed only the traffic with circumventin& devices**" 4* What types of remedies must (e made a"aila(le to the copyright holders7 Art" 11 -C$ briefly %rovides that 3effective le&al remedies5 should be im%lemented" Art" 1# (1 -C$ &enerally %rovides in this res%ect that 3Contractin& .arties underta)e to ado%t, in accordance with their le&al systems, the measures necessary to ensure the a%%lication of this $reaty"5 As a result, the -C$ does not define the s%ecific remedies (civil and<or criminal that must be im%lemented in the case of an unauthori8ed circumvention of the technolo&ical %rotection measures"
*7

or both the act and the business'traffic should be

*7 *#

$hese acts are also referred to as 3%re%aratory activities5" Moelman, at 6@7" *( ?inCe, at 621F see also Strowel<Dussolier, at @ (3les te'tes de lJ/M.! semblent ne concerner 9ue lJacte de neutralisation mZme de la mesure techni9ue de %rotection"5 ** See Dussolier, at 6,@"

1(

I;*!nited States
A* Introduction
As an introductory remar), it should be noted that the %rotection of technolo&ical %rotection measures enacted in the Di&ital Millennium Co%yri&ht Act (DMCA in /ctober 100, is 9uite detailed*@, if not 3fiendishly com%licated5 *," !t is therefore not sur%risin& that this re&ulation has %rovo)ed numerous comments and analyses in the le&al literature *0" .resentin& the details of the DMCA (and all the critical remar)s formulated a&ainst it would &o beyond the sco%e of this %a%er" !n &eneral terms, critical comments have been formulated a&ainst the DMCA because it is said to create a 3%ay:%er:use society5@2" $he DMCA has indeed created, by indirect means@1, a new 3ri&ht of access5 to the wor)s in favor of the co%yri&ht owners" Under the re&ime of the DMCA, unless the user can benefit from a s%ecific e'em%tion that would allow her to circumvent the technolo&ical access control to &et access to a di&ital wor)@6, each access to the wor) will be submitted to the conditions im%osed by the co%yri&ht owners (&enerally the %ayment of a fee " $echnolo&ical %rotection measures mi&ht also %revent the ma)in& of a co%y of the wor) so that the user is obli&ed to access to it on:line if she wants to use<enCoy the wor) a&ain" By com%arison, in the %resent world of tan&ible obCects, if the user buys a boo) in a boo)store, she owns it and can e'clusively decide on its future use, this %rivate use bein& not submitted to any further %ayment or conditions im%osed by the co%yri&ht owners" $his 3ri&ht of access5 is a new conce%t in co%yri&ht law, and neither the Berne Convention nor the -C$ do &rant an e'clusive ri&ht of access to the co%yri&ht owners@7"

*@ *,

1@ U"S"C" P 1621" David Gimmer, A +iff on Hair Use in the Di&ital Millennium Co%yri&ht Act, 1#, U" .enn" L" +" *@7, *@( (6222 F even thou&h the re&ulation is concentrated in one section of the statute (P 1621 , it %rovides for two different technolo&ical %rotection measures =access<use>F sets forth two rulema)in& %rocedures =one of them is desi&ned to ta)e %lace every three years> and seven s%ecific e'ce%tions to the %rohibition on the circumventin& activity" *0 See amon& (numerous other contributionsD Gimmer (9uoted in the %revious note and ." Samuelson, !ntellectual .ro%erty and the Di&ital 4conomyD -hy the Anti:Circumvention +e&ulations Geed to Be +evised, 1# Ber)eley $ech" L" A" (10, (*7 (1000 (statin& that the anti:circumvention %rovisions of the DMCA are 3un%redictable, overbroad, inconsistent, and com%le'"5 @2 Gimmer, at @12" @1 $hat is by &enerally outlawin& the circumvention of access %rotection measures in P 1621(a (1 " @6 /n these e'em%tions, see below !?"D" @7 Dussolier, at 601D 3$his =the ri&ht to control access to the wor)> !e facto ri&ht &oes beyond the criteria of exercise of their rights which Custified the %rotection of $M enacted by the -!./ $reaties5F Moelman<Belber&er, at 12 and at 67"

1* $he system of the DMCA is therefore said to threaten the balance of interests between co%yri&ht owners and users of the wor)s to the advanta&e of co%yri&ht owners @#" $hus, the 9uestion has arisenD 3will fair use survive;5@(" !n this res%ect, even thou&h P 1621 (c (1 e'%ressly %rovides that 3nothin& in this section shall affect ri&hts, remedies, limitations, or defenses to co%yri&ht infrin&ement, includin& fair use, under this title5, this has little %ractical im%ortance, because fair use is only a defence to co%yri&ht infrin&ement, but not to the inde%endent %rohibition on circumvention based on P 1621@*" !n other words, even if fair use e'ists, fair access does not" $he system of %rotection of technolo&ical %rotection measures im%lemented in the DMCA is twofold, and is based on the distinction between access %rotection and use %rotection measures@@"

.* Circum"ention of a technological measure protecting the access to the $orP 1621 (a %rohibits the unauthori8ed access to a wor) by outlawin& two different conductsD the act of circumvention (1" and the business of traffic)in& in circumventin& technolo&y (6" " 1* Act of circum"ention P 1621 (a (A (1 %rohibits the act of circumventing a technolo&ical %rotection measure (3Go %erson shall circumvent a technolo&ical measure that effectively controls access to a wor) %rotected under this title"5 " Due to the ambi&uity of the word 3effective5 in art" 11 -C$, the DMCA defines the terms 3effectively controls access5 in P 1621 (a (7 (B which %rovides that 3a technolo&ical measure Teffectively controls access to a wor)J if the measure, in the ordinary course of its o%eration, re9uires the a%%lication of information, or a %rocess or a treatment, with the authority of the co%yri&ht owner, to &ain access to the wor)"5 P 1621 (a (7 (A %rovides that 3to Tcircumvent a technolo&ical measureJ means to descramble a scrambled wor), to decry%t an encry%ted wor), or otherwise to avoid, by%ass, remove, deactivate, or im%air a technolo&ical measure, without the authority of the co%yri&ht owner"5
@# @(

See the article of Gimmer (9uoted above , passim" See Aulie C" Cohen, -!./ Co%yri&ht $reaty !m%lementation in the United States, -ill Hair Use Survive;, 61 4!.+ 67* (1000 " @* $his view has been ado%ted by Aud&e Ma%lan in the %niversal City Stu!io v. Reimer!es case, 111 H" Su%%" 6d, at 761:76# (on the basis of an inter%retation of the 3crystal clear5 Con&ressional intent F see however A" C" Ginsbur&, Co%yri&ht Use and 4'cuse on the !nternet, 6# Col" ?LA A" L ] Arts 1, at ,:0 (6222 " @@ /n this distinction, see above !!"F this distinction does not e'clude the %ossibility that a circumventin& technolo&y violates both the anti access and the anti co%y %rovisions of the DMCA, see Realnetworks, Inc. v. Streambox, Inc., 6222 U"S" Dist" L4L!S 1,,0 (-"D" -ash" 6222 "

1@ $he sco%e of a%%lication of the %rohibition on circumvention of access %rotection measures can be further e'em%lified by ta)in& two %ractical e'am%lesD a' Does the a(use of an identification procedure constitute a circum"ention of a technological protection measure7 As stated above@,, the access control to a %rotected content in the on:line environment can be accom%lished throu&h the use of an identification %rocedure (%assword and<or identification " $he 9uestion that arises is to analy8e whether someone who uses the %assword of a third %arty (with or without the authori8ation of this third %arty to access the %rotected content violates P 1621 (a (1 " /ne could consider that the act of this unauthori8ed user does not constitute a violation of the anti:circumvention %rovisions, because her act (enterin& a %assword is not obCectively different from the act of a le&itimate user" $he unauthori8ed use of the identification %rocedure therefore does not lead to any circumvention of the technolo&ical measure within the meanin& of P 1621 (a (1 and P 1621 (a (7 (A because it does not 3avoid, by%ass, remove, deactivate, or im%air a technolo&ical measure5, but merely uses it as would an authori8ed user do" $his does not however mean that this unauthori8ed user (as well as the third %arty who would have transmitted her %ersonal %assword to the user could not be held liable towards the owner of the unlawfully accessed content, in %articular on the basis of a violation of the (clic):on contractual a&reement" A similar issue mi&ht arise in connection with technolo&ical %rotection measures im%lemented in the on:line environment, which are desi&ned to %revent the access to on:line content by %eo%le who are located in a &iven area@0" !n such circumstances, a user who would declare a false location in order to &et access to the %rotected content, would not circumvent the technolo&ical %rotection measure,2, because her false declaration does not constitute an act of circumvention of the technolo&ical %rotection measure for the same reason as the unlawful user mentioned above"

@,

!!"A" See the inCunction of Govember 62, 6222 a&ainst Vahoo Hrance in order to %revent the access to unlawful content (auctions of Ga8i:related materials to users located in Hrance (/rdonnance de rRfRrR du $ribunal de Grande de .aris of Govember 62, 6222 , available at www"le&alis"net<Cnet<decisions<res%onsabilite<ordKt&i:%arisK621122"htm; see also the decision of the German Supreme Court dated Dec. 12, 2000, also related to Nazi-related materials, which leads to the implementation of similar eo raphic restrictions of access !see comments on this decision at www"wired"com<news<%olitics<2,16,7,#2**0,22"html". ,2 .rovided that such technolo&ical %rotection measures can be considered sufficiently 3effective5 within the meanin& of art" 11 -C$, if they can already be circumvented by a mere false declaration of a user without any further technolo&ical control*
@0

1, (' Does the use of a 0deep lin-2 constitute a circum"ention of a technological protection measure7 Another 9uestion is to )now whether the circumvention of a technolo&y %reventin& dee% lin)in& ,1 mi&ht constitute a circumvention of an access control technolo&y" As an e'am%le, the access to the sub%a&es of the GV$imes on the web is %ossible only to the subscribers of GV$imes"com" !f an unre&istered user tries to access to the sub%a&es of the site (by usin& a lin) , the access %rotection technolo&y will directly ta)e the user to the 3si&n in5 %a&e of the GV$imes,6" Dee% lin)in& is therefore not %ossible" $his means that there is a technolo&y that %rotects the unauthori8ed access to these sub%a&es" $his technolo&y 3effectively controls access to a wor)5,7 within the meanin& of the DMCA" -hat if a %erson develo%s a circumventin& technolo&y which would allow to by%ass this access control (allowin& the unre&istered user to access to the sub%a&es of the GV$imes and im%lements it in a dee% lin) on his own website (lin)in& site ; $his ty%e of circumvention fits in the le&al definition of 3to circumvent a technolo&ical measure5, because it avoids<by%asses the access control technolo&ical measure ,#" Gow, who can be liable for this circumventin& activity; Hirst of all, the %erson who uses the circumventin& technolo&y for the dee% lin)s on his website mi&ht be considered as 3%rovidin&5 a circumventin& technolo&y within the meanin& of P 1621 (a (6 and be liable under that %rovision,(" !n addition, the user of the dee% lin), even if innocent ,*, could also be held liable under P 1621 (a (1 (A that %rovides that 3=G>o %erson shall circumvent a technolo&ical measure that effectively controls the access to a wor) %rotected under this title5 ,@" Bowever, P 1627 (( (A
,1

$his %rotectin& technolo&y would 3)ic) bac)5 the dee% lin) user to the home%a&e of the lin)ed:to website in order either to sim%ly &et a hit on the home%a&e for advertisin& %ur%oses or to obli&e the user to &et throu&h a user identification systemF on the infrin&in& nature of dee% lin)in& under co%yri&ht law, see (os Angeles )imes v. &ree Republic, (# U"S"."O"6d 1#(7 (C"D" Cal", A%ril #, 6222 " ,6 See the 3si&n in5 %a&e at www"nytimes"com<auth<lo&in" ,7 P 1621 (a (1 (7 (B F the wor) at issue bein& any of the sub%a&es of the GV$imes, which contain ori&inal literary<%ictorial<&ra%hic wor)s of authorshi%" ,# P 1621 (a (1 (7 (A " ,( By analo&y, in the %niversal City Stu!ios, Inc. v" Reimer!es case, 111 H" Su%%" 6d at 76(, Aud&e Ma%lan held that by settin& u% a lin) on his website lin)in& to the circumventin& technolo&y (DeCSS , the defendants \offered, %rovided or otherwise traffic)ed in DeCSS\F this liability will come into consideration, if the circumventin& technolo&y otherwise meets the re9uirements set forth by P 1621 (a (6 (A :(C F in addition, the %erson who manufactures, im%orts, offers to the %ublic, or otherwise traffics in this circumventin& technolo&y mi&ht also violate P 1621 (a (6 " ,* $hat is, even if the user does not )now that she is usin& a %rohibited dee% lin), usually controlled by an access %rotection measure im%lemented by the owner of the lin)ed:to web%a&e" ,@ /nly civil remedies will be available (criminal remedies are related to willful violation for %ur%oses of commercial advanta&e or %rivate financial &ain, see P 162# (a "

10 %rovides that 3the court in its discretion may reduce or remit the total award of dama&es in any case in which the violator sustains the burden of %rovin&, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation5" $he user of a circumventin& dee% lin) mi&ht be a %erfect candidate for this e'em%tion for 3innocent violations5" 3* The rulema-ing procedure $he %rohibition of the act of circumvention has Cust entered into force on /ct" 6,, 6222,," Durin& the 6:year %eriod since the enactment of the DMCA (on /ct" 6,, 100, , the Library of Con&ress, u%on the recommendation of the +e&ister of Co%yri&hts, had to define, accordin& to a rulema)in& %ower based on P 1621 (a (1 (C , %otential 3%articular class=es> of wor)s5 ,0 which could be e'cluded from the &eneral %rohibition of circumvention set forth by P 1621 (a (1 (A " /n the basis of this rulema)in& %ower, the Librarian has been re9uired to 3%ublish any class of co%yri&hted wor)s for which the Librarian has determined, %ursuant to the rulema)in& conducted under sub%ara&ra%h (C , that non:infrin&in& uses by %ersons who are users of a co%yri&hted wor) are, or are li)ely to be, adversely affected, and the %rohibition contained in sub%ara&ra%h (A =%rohibition of circumventin& access control technolo&y> shall not a%%ly to such users with res%ect to such class of wor)s for the ensuin& 7:year %eriod"5 (P 1621 (a (1 (D " /n /ct" 6,, 6222, the Librarian has ruled that only two narrow classes of wor)s will benefit from the e'em%tion of %rohibition durin& the ne't 7:year %eriod (runnin& until /ct" 6,, 6227 (which means, in clear words, that the circumvention of technolo&ical %rotection measures to &et access to the followin& classes of wor)s will not constitute a violation of P 1621(a (1
02

,, ,0

P 1621 (a (1 (A second sentence" P 1621 (a (1 (B %rovides that 3the %rohibition contained in sub%ara&ra%h (A shall not a%%ly to %ersons who are users of a co%yri&hted wor) which is in a %articular class of wor)s, if such %ersons are, or are li)ely to be in the succeedin& 7:year %eriod, adversely affected by virtue of such %rohibition in their ability to ma)e noninfrin&in& uses of that %articular class of wor)s under this title, as determined under sub%ara&ra%h C =P 1621 (a (1 (C defines more %recisely what factors of a%%reciation should be considered by the Librarian of Con&ress in the course of his rulema)in& %rocedure, amon& which is the Tim%act of the %rohibition on the circumvention on comment, news re%ortin&, teachin&, scholarshi%, or researchJ"5 02 4'em%tions to .rohibition on Circumvention of Co%yri&ht .rotection Systems for Access Control $echnolo&ies, Hinal +ule, *( Hed" +e&" *#((* (/ct" 6@, 6222 (to be codified at 7@ CH+ .art 621 "

62 : Com%ilations consistin& of lists of websites bloc)ed by filterin& software a%%lications 01 (e'am%leD a com%ilation of %orno&ra%hic websites contained in filterin& software used to %revent CuvenilesJ access to such materialF the act of circumventin& access control measures to &ain access to such a list is not unlawful 06" : Literary wor)s, includin& com%uter %ro&rams and databases, %rotected by access control mechanisms that fail to %ermit access because of malfunction, dama&e or obsoleteness (the rationale for this e'em%tion is 9uite clearD 3in cases where le&itimate users are unable to access wor)s because of dama&ed, malfunctionin& or obsolete access controls, the access controls are not furtherin& the %ur%ose of %rotectin& the wor) from unauthori8ed users"5
07

$he re%ort of the Librarian of Con&ress is 9uite lon& and com%le' and its detailed analysis would &o beyond the %ur%ose of this %a%er" Bowever, this rulema)in& %rocedure raises several basic 9uestions that must be mentioned hereD a' Is this rulema-ing procedure the appropriate $ay to regulate the (alance of interests standing at the core of copyright la$7 Basically, the rulema)in& %rocedure mi&ht well become the most im%ortant means to define the sco%e of co%yri&ht and the e'tent of the %ermissible e'em%tions to co%yri&ht %rotection in the di&ital a&e0#" $his tas) has so far been accom%lished by Con&ress and by the courts 0(, which have hel%ed to desi&n a reasonable and balanced system of co%yri&ht %rotection" $he 9uestion therefore isD should not Con&ress and the courts a%%lyin& the federal statute (thus %ermittin& a

01

$his class of wor)s can be %ut in correlation with P 1621 (h which %rovides that 3in a%%lyin& subsection (a to a com%onent or %art, the court may consider the necessity for its intended and actual incor%oration in a technolo&y, %roduct, service, or device whichD (1 does not itself violate the %rovisions of this titleF and (6 has the sole %ur%ose to %revent the access of minors to material on the !nternet"5 06 Short before the rulema)in& was %ublished, a court &ranted an inCunction a&ainst the authors of a %ro&ram decry%tin& the list of bloc)ed websites, Microsystems Software Inc., v. Scan!inavian *n(ine A+ , Go" 22:1(27 (1st Cir" Se%t" 6@, 6222 " 07 *( Hed" +e&" at *#(*(" 0# 4ven thou&h formally the rulema)in& %rocedure do not %ro%erly refer to co%yri&ht law, but only to access control (which is not one of the e'clusive ri&hts enumerated in P 12* of the Co%yri&ht Act , it is clear (and has also been identified as such by scholars that access control is already (and will increasin&ly be in the future the most im%ortant means to control the use of the %rotected wor)s in the di&ital conte't" 0( See Gimmer, at *0@, stressin& the fact that this rulema)in& %rocedure is a 3de%arture from normal =Cudicial> %ractice5"

61 fle'ible a%%lication of the statutory %rinci%les, in %articular fair use , instead of an administrative body, continue to define the %recise sco%e of %rotection of co%yri&ht law0*; $he o%inion of the Librarian of Con&ress seems to confirm the difficulty of the tas) that he has been assi&ned" At several %laces in his re%ort, the Librarian of Con&ress has indeed e'%ressed the view : by re9uestin& the &uidance from Con&ress : that the issue should rather be addressed by Con&ress and not by him (in the course of the rulema)in& %rocedure " A Custification of the rather narrow sco%e of the e'em%tions &ranted on the basis of the rulema)in& %rocedure has further been &iven in the re%ort where it is stated that 3these recommendations =made by the +e&ister of Co%yri&hts to the Librarian of Con&ress> may seem modest in li&ht of the swee%in& e'em%tions %ro%osed by many commenters and witnesses, but they are based on a careful review of the record and an a%%lication of the standards &overnin& this rulema)in& %rocedure" -hile many commentators and witnesses made elo9uent %olicy ar&uments in su%%ort of e'em%tions for certain ty%es of wor)s or certain uses of wor)s, such ar&uments in most cases are more a%%ro%riately directed to the le&islator rather to the re&ulator who is o%eratin& under the constraints im%osed by section 1621(a (1 "50@ /n the other hand, some commentators have s%o)en in favor of a broader sco%e of the rulema)in& %rocedure in order to include the 3whole of the anti:circumvention %rovisions5 0, of the DMCA (and not only, as it is %resently the case, the anti:access circumvention %rovision , because of the ne&ative effect that these %rovisions can have on the com%etition and innovation in the information technolo&y field" !n any case, the %resent rulema)in& %rocedure does not a%%ear to be the a%%ro%riate tool to monitor the com%le' issues of co%yri&ht in the di&ital era" (' Is it $ise or e"en practica(le to (ase an e,emption system on 0classes of $or-s27 As mentioned above, e'em%tions (allowin& to circumvent anti:access %rotection measures can be &ranted only for a 3%articular class of wor)s5" /ne of the %roblems faced by the Librarian of Con&ress in the course of the rulema)in& %rocedure was %recisely to define what is a 3%articular class of wor)5" 3Class5 is similar, but not identical to the 3cate&ories5 of wor)s mentioned in P 126 of the Co%yri&ht Act" !n short, this terminolo&ical choice a%%ears unwise because it is more the %otential uses of the wor)s (for instance uses for research %ur%oses than the categories or
0* 0@

Cohen, at 67, (raisin& another constitutional concern =the violation of the se%aration of %owers> " *( Hed" +e&" at *#(*6" 0, Samuelson (1000 , at (*1"

66 classes of the wor)s, which should be considered in order to decide whether an e'ce%tion should be &ranted" As a result, the narrow conce%t of classes of wor) defined by the Librarian of Con&ress has had the conse9uence to eliminate several %ro%ositions made in order to obtain an e'em%tion from the %rohibition on circumvention00" c' What a(out the practical use of the e,emptions once granted7 /ne much more fundamental deficiency of the system is that, even if a s%ecific class of wor)s is identified as not bein& %rotected a&ainst acts of circumvention (as, for instance, the com%ilations of websites mentioned above , this e'em%tion mi&ht very well lac) any %ractical si&nificance, because a %otential user of a circumventin& technolo&y, if she is not able to develo% it herself, will not be able to obtain it from a third %arty, because, even if her act of circumventin& will be declared lawful as a result of the e'em%tion, the %rohibition on traffic)in& in circumventin& technolo&y will still be in force and be a%%licable to the act of third %arties122" $his situation can be e'em%lified as followsD the user (because of the e'em%tion has now &ained the ri&ht to unloc) the door of the room where the wor) is located, but no loc)smith has the ri&ht to develo% and &ive<sell her the tools (i"e" the )ey that she could use to unloc) the door (or to o%en the door for her " As a conse9uence, if she cannot do it herself, the user cannot %ractically benefit from the e'em%tion" $his shows another maCor %roblem resultin& from the a%%lication of the DMCA" 4* .usiness of traffic-ing in circum"enting technology P 1621 (a (6 &enerally %rohibits the business of traffic)in& in circumventin& %roducts and devices" $his %rovision %rovides that 3no %erson shall manufacture, im%ort, offer to the %ublic, %rovide, or otherwise traffic in technolo&y, %roduct, service, device, com%onent, or %art thereof5 which circumvent technolo&ical %rotection measures" Hor a better understandin& of the analysis, 3traffic5 will be used as a &eneric term for 3manufacture, im%ort, offer to the %ublic, %rovide, or otherwise traffic5 and 3circumventin& technolo&y5 will be used as a &eneric term for 3technolo&y, %roduct, service, device, com%onent, or %art thereof"5
00

*( Hed" +e&" *#((0 se9" P 1621 (a (1 (4 F this %roblem has been identified and critici8ed in several articles, see Vochai Ben)ler, Hree as the Air to Common UseD Hirst Amendment Constraints on 4nclosure of the .ublic Domain, @# G"V"U"L" +ev" 7(#, #60 (1000 D 3=U> there is no software" $here is no hardware" $here is no service" .roviders of circumvention technolo&y are still %rohibited, by criminal and civil sanctions, from sellin& in the United States"5F see also Gimmer, at @7#:@7@"
122

67 Bowever, the statute does not %rohibit every technolo&y that could be used to circumvent technolo&ical %rotection measures" $o be %rohibited, the circumventin& technolo&y must indeed meet any of the three followin& (alternative conditions121D : : : 3be %rimarily desi&ned or %roduced for the %ur%ose of circumventin&5 the access technolo&ical %rotection measure (P 1621 (a (6 (A F or 3Bave only limited commercially si&nificant %ur%ose or use other than to circumvent5 a technolo&ical %rotection measure (P 1621 (a (6 (B F or be 3mar)eted by5 the %erson who traffics with the circumventin& technolo&y or 3by another actin& in concert with that %erson with that %ersonJs )nowled&e for use in circumventin&5 a technolo&ical %rotection measure (P 1621 (a (6 (C " $his %rovision has been introduced in order to ma)e sure that manufacturers of usual consumer electronics %roducts or of com%uter %roducts (be there hardware or software would not be held liable by the mere fact that their %roducts could %otentially be used to circumvent technolo&ical %rotection measures" Some uncertainty mi&ht result from the definition of the terms 3 primarily desi&ned or %roduced for the %ur%ose of circumventin&5 and 3 limite! commercially significant %ur%ose or use other than to circumvent5 (em%hasis added " Suffice is to say that these tests could cause difficulties of inter%retation to the courts 126" $his 9uestion will also arise under the a%%lication of other le&islations because they set u% a similar test 127" $his 3%rimary %ur%ose5<5limited other si&nificant %ur%ose5 test de%arts from the test set forth by the Su%reme Court in the Sony case, where the contributory liability of Sony was denied because of the e'istence of 3substantial noninfrin&in& uses5 of the Betama' video ta%e recorders (?$+s
12#

" As a

result, and as noted by a leadin& commentator, 3those who manufacture e9ui%ment and %roducts &enerally can no lon&er &au&e their conduct as %ermitted or forbidden by reference to the Sony doctrine" Hor a &iven %iece of machinery mi&ht 9ualify as a sta%le item of commerce, with a substantial noninfrin&in& use, and hence be immune from attac) under SonyJs construction of the Co%yri&ht Act Q but nonetheless still be subCect to su%%ression under Section 1621"5 12( As a
121 126

Hor an e'am%le, see Realnetworks, Inc. v. Streambox, Inc., 6222 U"S" Dist" L4L!S 1,,0, at E62" As formulated by Dussolier (about the draft 4uro%ean Union Directive , at 601D 3what is a commercial %ur%ose; -hat is %rinci%al %ur%ose; !s it (1 %er cent of licit use, @( %er cent or 72 %er cent; -ill a device %rimarily desi&ned and sold to accom%lish a le&itimate %ur%ose but bein& eventually lar&ely ac9uired because of a circumvention use, be considered as illicit;5F see also Moelman<Belber&er, at 60" 127 !n %articular the 4uro%ean Directive, see ?"A"7" below" 12# Sony Corp. of America v. %niversal City Stu!ios, Inc", #*# U"S" #1@ (10,# F see Moelman<Belber&er, at 1," 12( Melville B" Gimmer ] David Gimmer, Gimmer on Co%yri&ht (1000 Su%%" , P 16A"1,=B>"

6# conse9uence, 3=4>9ui%ment manufacturers in the twenty:first century will need to vet their %roducts for com%liance with Section 1621 in order to avoid a circumvention claim, rather than under Sony to ne&ate a co%yri&ht claim"512* P 1621 (c (7 %rovides that manufacturers of consumer electronics, telecommunications, and com%utin& %roducts are not re9uired to desi&n their %roducts to res%ond to any %articular technolo&ical %rotection measure (no man!ate %rovision
12@

" $his %rovision has been inserted at

the re9uest of consumer electronics and com%uter industries, which feared that section 1621 otherwise mi&ht re9uire ?C+s and .Cs to res%ond to unilaterally im%osed technolo&ical %rotection measures12," $he DMCA however contains one e'ce%tion to the no man!ate %rovisionD P 1621 () re9uests analo&ue ?C+s to res%ond to the anti:co%y Macrovision technolo&y as of A%ril 6,, 6222120"

C* Circum"ention of technological measures protecting the use of the $or-s

$he DMCA does not outlaw the act of circumventin& a technolo&ical %rotection measure %rotectin& the use of the wor)112, but only %rohibit the %re%aratory activities" Hor e'am%le, the act of circumventin& a technolo&ical co%y control mechanism im%lemented on a com%uter software in order to ma)e a co%y of this software does not infrin&e P 1621 (b " $he decision of Con&ress not to %rohibit the act of circumventin& a technolo&ical measure %rotectin& a co%yri&ht was made because it would otherwise %enali8e %otential non:infrin&in& uses such as fair use111" $herefore, only the business of traffic)in& in circumventin& technolo&y is %rohibited by P 1621 (b " $he definition of traffic with circumventin& technolo&y is identical to the one &iven in

12*

!bid"F see also Realnetworks, Inc. v. Streambox, Inc", 6222 U"S" Dist" L4L!S 1,,0, at E67 and %niversal City Stu!ios, Inc. v. Reimer!es, 111 H" Su%%" 6d, at 767 (both 9uotin& this section of the treatise " 12@ $he non mandate %rovision of P 1621 (c (7 3does not %rovide immunity for %roducts that circumvent technolo&ical measures in violation of Sections 1621(a (6 or (b (1 "5 !f this were the case, 3any manufacturer of circumvention tools could avoid DMCA liability sim%ly by claimin& it chose not to res%ond to the %articular %rotection that its tool circumvents"5 Realnetworks, Inc. v. Streambox, Inc", 6222 U"S" Dist" L4L!S 1,,0, at E6(" 12, ?inCe, at 62#" 120 See Mar)s<$urnbull, at 626" 112 $he le&al terminolo&y for this ty%e of technolo&ical %rotection measures %rotectin& the use of the wor) is 3technolo&ical measure that effectively %rotects a ri&ht of a co%yri&ht owner under this title5 P 1621 (b (1 (A " 111 $his choice of Con&ress accurately follows the third re9uirement set forth by art" 11 -C$ accordin& to which only the circumvention of technolo&ical %rotection measures for infrin&in& %ur%oses shall be %rohibited, see above !!!"A"7"

6( connection with the access control %rotection measure116, while the notion of circumvention has a similar wordin&117" P 1621 (b (6 (B defines that a technolo&ical measure 3 Teffectively %rotects a ri&ht of a co%yri&ht owner under this titleJ if the measure, in the ordinary course of its o%eration, %revents, restricts, or otherwise limits the e'ercise of a ri&ht of a co%yri&ht owner under this title"5 /n this basis, technolo&ical %rotection measures that do not %revent, restrict or otherwise limit the 3e'ercise of a ri&ht of a co%yri&ht owner5 are not %rotected under P 1621 (b " As a conse9uence, re&ion:codin& technolo&ies, which do not %rotect any ri&ht of a co%yri&ht owner 11#, are not included in the definition of P 1621 (b (6 (B " $hese technolo&ies however are still %rotected under P 1621 (a because they are access control technolo&ies11("

D* Limited set of e,ceptions

!n addition to the e'em%tions of 3%articular classes of wor)s5 which may be &ranted in the course of the rulema)in& %rocedure conducted under P 1621 (a (1
11*

, the DMCA contains several

s%ecific e'ce%tions %ermittin& the circumvention of technolo&ical %rotection measures in %articular cases (e'em%tions for non%rofit libraries, archives, and educational institutionsF law enforcement, intelli&ence, and other &overnmental activitiesF reverse en&ineerin&F encry%tion researchF e'ce%tions re&ardin& minorsF %rotection of %ersonally identifyin& informationF security testin&
11@

" $he narrow sco%e of some of these e'ce%tions has been critici8ed for their resultin&

chillin& effect on technolo&ical innovation11," Hor instance, the a%%lication of the e'ce%tions for reverse en&ineerin& (P 1621 (f and for encry%tion research (P 1621 (& raised by the defendants in the case relatin& to the software (DeCSS decry%tin& D?Ds has been denied110"

116 117

Com%are P 1621 (a (6 (A :(C and P 1621 (b (1 (A :(C " P 1621 (b (6 (A %rovides that 3to Tcircumvent %rotection afforded by a technolo&ical measureJ means avoidin&, by%assin&, removin&, deactivatin&, or otherwise im%airin& a technolo&ical measureF =U>5 11# See above !!!"A"7, as discussed in connection with art" 11 -C$" 11( Althou&h it has been ar&ued that the circumvention of re&ion codin& %rotection should be lawful because these technolo&ies unduly restrict the uses of the wor)s, the Librarian of Con&ress has denied to &rant an e'em%tion for this %ur%ose, see above !?"B"6" 11* See !?"B"6 above" 11@ See P 1621 (d Q (C F see Michael Schlesin&erD 4'ce%tions and Limitations on the .rohibition of Circumvention of Access Controls, and on the .rohibition on Circumvention of $echnolo&ical Measures .rotectin& $raditional +i&hts Under Co%yri&ht (re%ort to the ALA! Con&ress 6221 " 11, See Samuelson (1000 , at (7@ se9" 110 %niversal City Stu!ios, Inc. v. Reimer!es , 111 H" Su%%" 6d, at 710:761"

6*

;*

uropean !nion

$he le&al %rotection of technolo&ical %rotection measures in the 4uro%ean Union is based on three le&al instruments" $he first 4uro%ean Directive dealin& with technolo&ical %rotection measures was the Directive on the le&al %rotection of com%uter %ro&rams 162 which %rovides (art" @ that 3Member States shall %rovide =U> a%%ro%riate remedies a&ainst a %erson committin& =U> (c any act of %uttin& into circulation or the %ossession for commercial %ur%ose of, any means the sole %ur%ose of which is to facilitate the unauthori8ed removal or the circumvention of any technical device which may have been a%%lied to %rotect a com%uter %ro&ram5161" $he second instrument is the Directive on the harmoni8ation of certain as%ects of Co%yri&ht and related ri&hts in the !nformation Society (Co%yri&ht in the !nformation Society Directive, C!SD , which is s%ecifically desi&ned to im%lement the obli&ations of the -!./ $reaties in the 4uro%ean Union" /n Hebruary 1#, 6221, the common %osition of the Council (very sli&htly amended Council on A%ril 0, 622116#" $he third instrument is the Directive on the le&al %rotection of services based on, or consistin& of, conditional access (Conditional Access Directive, CAD
16( 166

was ado%ted by the 4uro%ean .arliament167 and the Directive has eventually been a%%roved by the

, which has the &eneral %ur%ose to

%rotect the access to and the remuneration of on line services (amon& which are co%yri&ht %rotected wor)s " $he CAD has further served as a model for the 4uro%ean Convention on the Le&al .rotection of Services based on, or consistin& of, Conditional Access, drafted under the

162

Directive 01<6(2<C44 of the Council on the le&al %rotection of com%uter %ro&rams of May 1#, 1001, /"A" L 166 of May 1@, 1001, %" #6" 161 As noted by Dussolier, at 6,*, the %otential differences in the conditions<wordin& of the software Directive and of the Directive on co%yri&ht in the information society re&ardin& the circumvention of technolo&ical %rotection measures mi&ht %rove %roblematic, even thou&h +ecital (2 of the final version of the last Directive e'%ressly %rovides that the circumvention of com%uter software should remain &overned e'clusively by the com%uter software Directive" 166 Common %osition ado%ted by the Council on 6, Se%tember 6222 with a view to the ado%tion of a Directive of the 4uro%ean .arliament and of the Council on the harmoni8ation of certain as%ects of co%yri&ht and related ri&hts in the information society, /"A" C 7## of 1 December 6222, %" 1" 167 4uro%ean .arliament le&islative resolution on the Council common %osition for ado%tin& a 4uro%ean .arliament and Council directive on the harmoni8ation of certain as%ects of co%yri&ht and related ri&hts in the !nformation Society, of 1# Hebruary 6221" 16# A consolidated version of the Directive has been released on May 66, 6221" 16( Directive 0,<,# 4"C" of the 4uro%ean .arliament and of the Council of Govember 62, 100,, /"A" L 762, Govember 11, 100,, %" (#"

6@ initiative of the Council of 4uro%e, which is o%en for si&nature by national States since Aanuary 6#, 622116*" /ne maCor difference between the DMCA (and other national le&islations and the 4uro%ean Directives is that the Directives are directed to the Member States, and have to be later im%lemented in national le&islations (in a s%ecified deadline " $he Directives have the &eneral function to harmoni8e the national le&islations by settin& the aims without im%osin& the means" $his could be a reason why the re&ulation of the DMCA on technolo&ical measures is much more detailed than the one %rovided for in the C!SD"

A* Copyright in the Information Society Directi"e

$he historical develo%ment of the C!SD is rather com%le'" !t will not be analy8ed in detail in this %a%er, which will focus on the final version of the %rovision on technolo&ical measures contained in the C!SD (art" *
16@

"

Art" * C!SD sets forth the re&ulation of technolo&ical %rotection measures" $his %rovision %rohibits both the act of circumvention (art" * al" 1 as well as the traffic in circumventin& technolo&ies (art" * al" 6 " 1* Definition of technological protection measures Art" * al" 7 C!SD defines technolo&ical %rotection measures as 3any technolo&y, device or com%onent that, in the normal course of its o%eration, is desi&ned to %revent or restrict acts, in res%ect of wor)s or other subCect:matter, which are not authori8ed by the ri&ht holder of any co%yri&ht or any ri&ht related to co%yri&ht as %rovided for by law or the sui &eneris ri&ht %rovided for in Cha%ter !!! of Directive 0*<0<4C"5
16*

$he aim of this Convention, which com%lements the CAD, is to offer o%erators<%roviders of %ay television and radio as well as remunerated on:line services %rotection a&ainst the illicit rece%tion of their services at the wider 4uro%ean level (lar&er than the 4uro%ean Union " $he Convention re9uires ratifyin& States to establish a number of activities in this domain as criminal or administrative offences, for e'am%le the manufacturin& of illicit decoders or smart cards for %ay:$? services or the distribution or commerciali8ation of the latter" $he %ersonal use of an illicit decoder or smart card is not made a criminal offence under the Convention, but .arties may &o beyond the Convention on this %oint and notify to the Secretary General that they criminali8e such an activity" By the ado%tion of this Convention, the Council of 4uro%e will be su%%ortin& 4uro%ean broadcasters and on:line service %roviders a&ainst the financial losses that they suffer as a result of ille&al decodin& devices and hac)in& activities in &eneral" $he Convention, which has been ado%ted by the Committee of Ministers on * /ctober 6222, is o%en for si&nature in Strasbour& by the member States of the Council of 4uro%e, the other States %arties to the 4uro%ean Cultural Convention and the 4uro%ean Community since 6# Aanuary 6221 (see htt%D<<conventions"coe"int< " 16@ Given that art" * C!SD has not been amended at a later sta&e, the final version that will be analy8ed is the one of the common %osition ado%ted by the Council on 6, Se%tember 6222 with a view to the ado%tion of a Directive of the 4uro%ean .arliament and of the Council on the harmoni8ation of certain as%ects of co%yri&ht and related ri&hts in the information society, /"A" C 7## of 1 December 6222, %" 1"

6, Hollowin& the technolo&y:neutral a%%roach ado%ted in the -C$16,, technolo&ical %rotection measures are defined by their %ur%ose, which is to %revent acts that are not authori8ed by the ri&ht holder of any co%yri&ht, or any ri&ht related to co%yri&ht" /n the basis of this definition, the threshold issue is therefore to define whether or not the ri&ht holder has authori8ed the acts for which technolo&ical %rotection measures have been im%lemented" !f the ri&ht holder has not authori8ed an act, any technolo&ical %rotection measures %rotectin& the unauthori8ed e'ercise of this act would be within the sco%e of a%%lication of this %rovision, even if this act is not within the sco%e of %rotection of co%yri&ht law" Hor e'am%le, if a co%yri&ht owner (for instance an on:line news com%any s%ecifically %rohibits by contract (in a 3clic) on5 a&reement160 the 9uotation for news re%ortin& of the access %rotected content, a technolo&ical %rotection measure %rotectin& such content would be enforceable (circumventin& it would be unlawful under art" * al" 7 C!SD, because the act at issue (i"e" the further 9uotation of the content has not been authori,e! by the ri&ht holder, even thou&h the 9uotation for news re%ortin& of %rotected wor)s mi&ht not be %rohibited by co%yri&ht law 172" $his e'am%le shows that this e'tensive definition of technolo&ical %rotection measures &oes beyond the re9uirement of the -C$ in favor of the co%yri&ht owners171" By contrast, in an earlier version of the Directive, technolo&ical %rotection measures were defined as any device, services, etc" 3desi&ned to %revent or inhibit the infrin&ement of any co%yri&ht or any ri&hts related to co%yri&ht5176" $his meant that the le&al %rotection was limited to technolo&ical %rotection measures that %revented acts of infrin&ement of co%yri&ht177" /ne could have wished that the %resent %rovision had followed more closely the wordin& of art" 11 -C$, which %rotects technolo&ical %rotection measures only to the e'tent that they restrict acts that are not authori8ed by the authors or permitte! by law17#"

16, 160

See above !!!" Assumin& that this contract is enforceable" 172 $he Berne Convention %rovides e'ce%tions both for 9uotation and news re%ortin& (art" 12 al" 1 and art" 12bis al" 1" 171 $here is no more conver&ence between the sco%e of co%yri&ht %rotection and the sco%e of the anti:circumvention %rovision, see above !!!"A"7" 176 Art" * al" 7 of the Amended .ro%osal for a 4uro%ean .arliament and Council Directive on the harmoni8ation of certain as%ects of co%yri&ht and related ri&hts in the !nformation Society of May 61, 1000 (C/M (1000 6(2 final, /A C 1,2 of Aune 6(, 1000, %" * " 177 Moelman<Belber&er, at 12" 17# Moelman, at 6@7D 3in the wordin& of the $reaty, the limitations of co%yri&ht do affect the e'tent to which technolo&ical %rotection schemes have to be %rotected5F see above !!!"A"7"

60 Art" * al" 7 C!SD %rovides that 3technolo&ical measures shall be deemed TeffectiveJ where the use of a %rotected wor) or other subCect:matter is controlled by the ri&ht holders throu&h a%%lication of an access control or %rotection %rocess, such as encry%tion, scramblin& or other transformation of the wor) or other subCect:matter or a co%y control mechanism, which achieves the %rotection obCective"5 Art" * al" 7 C!SD %rovides a test of 3effectiveness5 for technolo&ical %rotection measures" $he rationale for this test of effectiveness is that ri&ht holders must first %rove that the technolo&ical %rotection measures they have chosen reach a certain level of effectiveness in order to obtain le&al %rotection a&ainst their circumvention 17(" As a conse9uence, deficient technolo&ical %rotection measures, that is technolo&ical %rotection measures that can be circumvented too easily : or even by accident : cannot be %rotected a&ainst circumvention" Art" * al" 7 C!SD &ives a broad definition of 3effective5 technolo&ical %rotection measures which cover both access and co%y controls, without ma)in& any distinction between these ty%es of technolo&ical %rotections measures17*" Bowever, by referrin& e'clusively to a 3co%y control mechanism5, this %rovision could be inter%reted as e'cludin& any le&al %rotection a&ainst circumvention of technolo&ical %rotection measures that would %rotect e'clusive ri&hts of the co%yri&ht owners other than the re%roduction ri&ht17@" 3* Act of circum"ention $he %ur%ose of %rior versions of the C!SD was to outlaw only the business of traffic)in& in circumventin& technolo&y, and to leave the act of circumvention itself out of the sco%e of the Directive" $his a%%roach has chan&ed in the meantime" !n its final version, the Directive e'%ressly %rohibits the act of circumvention itself" Article * al" 1 C!SD %rovides that 3=M>ember States shall %rovide ade9uate le&al %rotection a&ainst the circumvention of any effective technolo&ical measures, which the %erson concerned carries out in the )nowled&e, or with reasonable &rounds to )now, that he or she is %ursuin& that obCective"5 $he %articularity of this definition is that it contains an element of intention" $he reason for this element is to ma)e sure that 3innocent5 acts of circumvention, that is acts, which are
17( 17*

Dussolier, at 602" $his a%%roach is different, as seen above !!!"A", from the one chosen in the DMCA" 17@ $his im%lies that technolo&ical %rotection measures %rotectin& a&ainst streamin& mi&ht %otentially not fall within the sco%e of %rotection of the C!SDF on the 9uestion of streamin&, see above !!"B"

72 accom%lished by a %erson, without )nowled&e or without reasonable &rounds to )now, that she is %ursuin& the obCective of circumventin&, do not tri&&er any le&al sanctions under the C!SD" $his element would ma)e a difference for the innocent user of a circumventin& dee% lin), as discussed above in connection with the DMCA17," !n that case, the innocent circumventer would not be liable under art" * al" 1 C!SD" 4* .usiness of traffic-ing in circum"enting technology Art" * al 6 C!SD %rovides a %rotection addressin& the business of traffic)in& in circumventin& technolo&y which is 9uite similar to the DMCA" Art" * al" 6 C!SD %rovides that 3=M>ember States shall %rovide ade9uate le&al %rotection a&ainst the manufacture, im%ort, distribution, sale, rental, advertisement for sale or rental, or %ossession for commercial %ur%oses of devices, %roducts or com%onents or the %rovision of services whichD (a are %romoted, advertised or mar)eted for the %ur%ose of circumvention of, or (b have only a limited commercially si&nificant %ur%ose or use other than to circumvent, or (c are %rimarily desi&ned, %roduced, ada%ted or %erformed for the %ur%ose of enablin& or facilitatin& the circumvention of, any effective technolo&ical measures"5 As mentioned in connection with the similar %rovision contained in the DMCA 170, this %rovision mi&ht %rovo)e difficulties of inter%retation because of the %otentially ambi&uous terms 3limited commercially si&nificant %ur%ose or use other than to circumvent5 and 3%rimary desi&ned =U> for the %ur%ose of enablin& =U> circumvention5" <* 0;oluntary measures2 used to define the scope of copyright protection Art" * al" # C!SD contains a very ori&inal solution (or more %recisely a %ro%osal for a future solution dealin& with the crucial issue of the e'ce%tions to co%yri&ht" Art" * al" # C!SD has the %ur%ose to ma)e sure that the %osition of the users of the wor)s is also considered while introducin& a new %rotection a&ainst circumvention of technolo&ical %rotection measures in favor of the ri&ht holders" $his %rovision invites the interested %arties (i"e" the ri&ht holders, the users and %otential interested third %arties =%roducers of consumer electronic &oods>
17,

See above !?"B"1"b "F the e'am%le of dee% lin)in& could show that it mi&ht be im%ortant to maintain a condition of intention in the definition of the act of circumvention in s%ite of the criticism formulated a&ainst itF see Moelman<Belber&er, at 10 (commentin& on a earlier version of the %ro%osal of the Directive D 3A reason not to re9uire %roof of )nowled&e may be that it can be assumed that a %erson circumventin& an TeffectiveJ $M =technolo&ical %rotection measure> will (have, at least, a reason to )now he is tam%erin& with a %rotective measure anyway, and therefore a )nowled&e test would be redundant"5 170 See above !?"B"7"

71 to ta)e 3voluntary measures5 in order to ma)e sure that users can benefit from the e'ce%tions to co%yri&ht law &ranted under the national le&islations" $his %rovision thus dele&ates the tas) of definin& the sco%e of co%yri&ht (and of the e'ce%tions to co%yri&ht to %rivate entities" $his is a &ood solution as lon& as the bar&ainin& %ower of the %arties is similar" !f not1#2, the co%yri&ht balance mi&ht be affected" By default (if no a&reement is reached between the interested %arties , Member States are re9uested to ta)e 3a%%ro%riate measures5 to ensure that ri&ht holders 3ma)e available to the beneficiary of an e'ce%tion or limitation %rovided for in national law the means of benefitin& from that e'ce%tion or limitation, to the e'tent necessary to benefit from that e'ce%tion or limitation and where that beneficiary has le&al access to the %rotected wor) or subCect:matter concerned"5 (art" * al" # %ar" 1 C!SD Bowever, in s%ite of its a%%arently well:balanced a%%roach, the whole system is Ceo%ardi8ed by art" * al" # %ar" # which %rovides that the voluntary a&reements definin& the sco%e of the e'ce%tions to co%yri&ht %rotection or, by default, the measures ta)en by Member states definin& these e'ce%tions 3shall not a%%ly to wor)s or other subCect:matter made available to the %ublic on a&reed contractual terms in such a way that members of the %ublic may access them from a %lace and at a time individually chosen by them"5 As a result, &iven that this ty%e of use is %resently the most im%ortant (if not the only use of co%yri&hted wor)s in the on:line environment, the effective a%%lication of the e'ce%tions to co%yri&ht law is Ceo%ardi8ed in the C!SD" =* Monitoring of the application of the CISD and amendments procedure !n addition to the 3%rivate rulema)in& %rocedure5 set forth by art" * al" #, art" 16 C!SD %rovides that, every three years, the Commission shall submit to the 4uro%ean .arliament, the Council and the 4conomic and Social Committee a re%ort on the a%%lication of this Directive" $his re%ort shall e'amine in %articular whether art" * 3confers a sufficient level of %rotection and whether acts which are %ermitted by law are bein& adversely affected by the use of effective technolo&ical measures"5 Art" 16 al" 1 C!SD also %rovides that the Commission, when necessary to accom%lish the internal mar)et, shall submit %ro%osals for amendments to the C!SD"
1#2

$his would be the case if the co%yri&ht owners can contractually im%ose conditions, which do no res%ect the sco%e of the e'em%tions &ranted to the users by national co%yri&ht laws" $o avoid such a result, the terms of the a&reements (3voluntary measures5 could be controlled by an official body (at 4U or national level before becomin& effective, for instance the 3contact committee5 to be created under art"16 C!SD"

76 Art" 16 al" 7 C!SD further %rovides for the establishment of a 3contact committee5 which will in %articular have the tas) to 3act as a forum for the assessment of the di&ital mar)et in wor)s and other items, includin& %rivate co%yin& and the use of technolo&ical measures"5 $his system of %ermanent monitorin& of the im%act of the C!SD can be com%ared to the rulema)in& %rocedure conducted under the DMCA, which has a similar function to maintain the balance between the interests of co%yri&ht owners and of users 1#1" As for the DMCA, it remains to be seen whether this %rocedure will %rove efficient to deal with the com%le' issues at sta)e"

.* Directi"e on Conditional Access

$echnolo&ical %rotection measures %rotectin& the access to a co%yri&ht %rotected wor) are also %rotected by the Directive on the le&al %rotection of services based on, or consistin& of, conditional access (Conditional Access Directive, CAD
1#6

"

$he obCective of the CAD is 3to a%%ro'imate %rovisions in the Member States concernin& measures a&ainst illicit devices which &ive unauthori8ed access to %rotected services"5 (Art" 1 CAD " $he interest %rotected by the CAD is the remuneration of the service %rovider, and not the content of the service in itself" $he sco%e of a%%lication of the CAD is very broad 1#7" $he CAD %rotects all )inds of on line conditional access services (on line bro)era&e, ban)in&, healthcare, travel a&ency, distance learnin&, etc" , and not only intellectual %ro%erty %roducts (%ay:$?F video:on:demandF electronic %ublishin&
1##

" 1* Protection of conditional access to a ser"ice

As defined by art" 6 (b CAD, 3conditional access shall mean any technical measure and<or arran&ement whereby access to the %rotected service in an intelli&ible form is made conditional

1#1 1#6

See above !?"B"6" Directive 0,<,# 4"C" of the 4uro%ean .arliament and of the Council of Govember 62, 100,, /"A" L 762, Govember 11, 100,, %" (#" 1#7 See art" 6 (a CAD, definin& that %rotected service 3shall mean any of the followin& services, where %rovided a&ainst remuneration and on the basis of conditional accessD : television broadcastin&, as defined in Article 1(a of Directive ,0<((6<44C, : radio broadcastin&, meanin& any transmission by wire or over the air, includin& by satellite, of radio %ro&rammes intended for rece%tion by the %ublic, : information society services within the meanin& of Article 1(6 of Directive 0,<7#<4C of the 4uro%ean .arliament and of the Council of 66 Aune 100, layin& down a %rocedure for the %rovision of information in the field of technical standards and re&ulations and of rules on information society services (@ , or the %rovision of conditional access to the above services considered as a service in its own ri&htF5 1## Dussolier, at 6,,"

77 u%on %rior individual authorisation5" Art" 6 (b CAD does not only refer to encry%tion, but also encom%asses scramblin& and other techni9ues (electronic loc)s, %asswords
1#(

"

Art" 6 (c CAD further defines 3conditional access device5 as 3any e9ui%ment or software desi&ned or ada%ted to &ive access to a %rotected service in an intelli&ible form"5 3* Illicit de"ice gi"ing unauthori5ed access Art" 6 (e CAD defines the circumventin& technolo&y as an 3illicit device5 meanin& 3any e9ui%ment or software desi&ned or ada%ted to &ive access to a %rotected service in an intelli&ible form without the authorisation of the service %rovider5" 4* .usiness of traffic-ing in circum"enting technology /nly the business of traffic)in& in illicit devices, and not the act of circumvention itself, is %rohibited by the CAD" Art" # CAD defines the infrin&in& activities asD 3(a the manufacture, im%ort, distribution, sale, rental or %ossession for commercial %ur%oses of illicit devicesF (b the installation, maintenance or re%lacement for commercial %ur%oses of an illicit deviceF (c the use of commercial communications to %romote illicit devices"5 $he CAD does not %rohibit any activity with an illicit device that is not underta)en for commercial %ur%oses" As a conse9uence, the %ossession or manufacture of an illicit device for a %ersonal use is not %rohibited" <* /elation (et$een the CISD and the CAD $he res%ective %ur%oses of the CAD and the C!SD are differentD the CAD %rotects a financial interest (the remuneration of a service %rovider while the C!SD %rotects wor)s %rotected by co%yri&ht law" $he 4U administration considers that these two %ieces of le&islation are com%lementary 1#*" $heir sco%e of %rotection mi&ht however be overla%%in& in certain circumstances1#@" /ne main concern resultin& from this overla% relates (once a&ain to the e'tent to which the e'ce%tions to co%yri&ht law will be e'ercised under the CAD"

1#( 1#*

Moelman<Belber&er, at #(" See recital (61 of the DCAD 3-hereas this Directive is without %reCudice to the a%%lication of any national %rovisions which may %rohibit the %rivate %ossession of illicit devices, to the a%%lication of Community com%etition rules and to the a%%lication of Community rules concernin& intellectual %ro%erty ri&hts"5 1#@ Moelman<Belber&er, at (1"

7# A circumventin& activity mi&ht indeed be considered licit under the C!SD (on the basis of a 3voluntary a&reement5 %rovided for by art" * al" # C!SD , but the same activity could however still %otentially be held unlawful under the CAD1#," Considered more &enerally from the %oint of view of users of co%yri&hted wor)s, it would not ma)e sense to stru&&le for and obtain an e'ce%tion to co%yri&ht %rotection (for e'am%le, in order to access content for fair use %ur%oses only within the co%yri&ht s%ecific re&ulation1#0, if these acts, which would then be lawful under co%yri&ht law, are still unlawful under some other a%%licable le&islations" $his %otential overla% of le&islations therefore illustrates how difficult a re&ulation of this issue can be if no attention is %aid to the surroundin& le&al environment"

;I*

&apan

$he system of %rotection a&ainst circumvention of technolo&ical %rotection measures in Aa%an is twofold" !t has been im%lemented by amendments made in %art in the Aa%anese Co%yri&ht Law (CL
1(2

, and in %art in the Aa%anese Anti:Unfair Com%etition Law (AUCL

1(1

" $he amendments

made to the CL and to the AUCL both came into force on /ctober 1, 1000" $he dual %rotection chosen by Aa%an can be e'%lained as followsD the amendment made in the CL focuses on the circumvention of technolo&ies %rotectin& a&ainst co%yri&ht infrin&ement (it relates to technolo&ical %rotection measures desi&ned to 3%revent or deter5 a&ainst infrin&ements of co%yri&ht " By contrast, the amendment to the AUCL focuses %rimarily on the circumvention of access control technolo&ies1(6" As access control is not %rotected under co%yri&ht law, its %rotection could not be im%lemented in the CL, and was therefore introduced in the AUCL"

A* Copyright la$
Article 6 ('' CL defines 3technolo&ical %rotection measures\ as 3measures to %revent or deter such acts as constitute infrin&ements on moral ri&hts or co%yri&ht mentioned in Article 1@, %ara&ra%h (1 or nei&hborin& ri&hts"5

1#, 1#0

See Dussolier, at 60#" !n the 4uro%ean Union, by a%%lication of the %rocedure of art" * al" # C!SD, and in the U"S", in the course of the rulema)in& %rocedure of the DMCA" 1(2 See the Aa%anese Co%yri&ht Law Go" #,, %romul&ated on May *, 10@2 as amended by Law Go" @@, of Aune 1(, 1000, available at www"cric"or"C%<cricKe<ecolC<cl1"html^cl1_S1" 1(1 $ranslation of the Act and of the commentaries )indly %rovided by Michael Schlesin&er" 1(6 Bowever, as will be seen below, the AUCL also im%lements technolo&ical measures controllin& the use of the wor)s (co%y control "

7( $echnolo&ical %rotection measures are, once a&ain, defined by their %ur%ose, which is to prevent or !eter any infrin&ement of co%yri&ht1(7" $he term 3to %revent5 is not defined in the CL, whereas 3to deter5 is defined 1(#" $he CL does not outlaw the act of circumvention itself1((, but %rohibits the business of traffic)in& in circumventin& technolo&y1(*" As in the DMCA and in the C!SD, there is a test relatin& to the function of the device used for circumvention (here, the 3%rinci%al function for the circumvention of technolo&ical %rotection3
1(@

that mi&ht be difficult to a%%ly"

.* Anti6!nfair Competition La$

1* Definition of technical restriction means $echnolo&ical %rotection measures are referred to in the AUCL as 3technical restriction means5" Art" 6 (( %rovides a definition of Ttechnical restriction meansJ a 3means that uses an electroma&netic method (an electronic method, ma&netic method or other method that cannot be confirmed by human %erce%tion to restrict the viewin& and listenin& of ima&es and sounds, the e'ecution of %ro&rams or the recor!ing of images, soun!s or programsF =U>5 (em%hasis added " $hese means a%%ear %rimarily desi&ned to %rotect the access to the wor)s (3to restrict the viewin& and listenin& of ima&es and sounds5 " Bowever, this %rovision also includes means that restrict the 3recordin& of ima&es, sounds or %ro&rams5, which is ty%ically a co%y control (use control function" 3* .usiness of traffic-ing in circum"enting technology $he AUCL %rohibits only %re%aratory activities, and not the act of circumvention itself" $wo %re%aratory activities are %rohibited by art" 6 AUCL" Article 6(1 (12 (' first %rovides that it is an act of unfair com%etition 3to convey, deliver, e'hibit for the %ur%ose of conveyin&, deliverin&, e'%ortin& or im%ortin& e9ui%ment (includin&
1(7

As well as moral ri&htsF for the sa)e of sim%licity, moral ri&hts will be im%licitly included in the term 3co%yri&ht5 when referrin& to the Aa%anese le&islation" 1(# Art" 6 ('' CL defines 3to deter5 as meanin& 3to deter such acts as constitute infrin&ements on co%yri&ht, etc" by causin& considerable obstruction to the results of such acts"5 1(( Art" 72 (1 (i CL however %rovides that a %erson who is re%roducin& a wor) for %rivate %ur%oses by circumventin& a technolo&ical %rotection measure and who )nows that this re%roduction is made %ossible by this circumvention cannot benefit from the statutory e'ce%tion of co%yri&ht for %rivate use" $his %rovision does however not &enerally outlaw the act of circumvention in itself" 1(* /nly criminal remedies are available under art" 162bis CL" 1(@ Article 162bis:=U> 3(i any %erson who transfers to the %ublic the ownershi% of, or =U> a device having a principal function for the circumvention of technolo&ical %rotection measures =U> or co%ies of a %ro&ram having a principal function for the circumvention of technolo&ical %rotection measures =U>5 (em%hasis added "

7* devices that assemble such e9ui%ment that only have the function of %reventin& the effect of a technical restriction means and ma)in& it %ossible to view and listen to ima&es and sounds, e'ecute %ro&rams, or record ima&es, sounds or %ro&rams that are restricted by the technical restriction means that are used in business =U>5" As e'%lained in a commentary to the AUCL1(,, this subsection covers for instance 3the act of sellin& a Macrovision canceller which removes the co%y&uard (Macrovision method that is %ut on a movie (etc" ima&e, as well as in the case of CSS (Content Scramblin& System which is attached to a D?D in the %rocess of manufacture, the act of sellin& a machine (other than a dis%lay machine that does not allow you to decode that ille&ally decodes the code %laced on the content"5 $his e'am%le mi&ht confirm that the AUCL also addresses the 9uestion of circumvention of use control (in %articular co%y control measures, and does not only relate to access control1(0"

Article 6(1 (11 ('i further %rovides that it is an act of unfair com%etition to 3convey, deliver,
e'hibit for the %ur%ose of conveyin&, deliverin&, e'%ortin& or im%ortin& e9ui%ment (includin& devices that assemble such e9ui%ment that only have the function of %reventin& the effect of a technical restriction means and ma)in& it %ossible to view and listen to ima&es and sounds, e'ecute %ro&rams, or record ima&es, sounds or %ro&rams that are restricted by the technical restriction means that are used in business in order to disallow the viewin& and listenin& of ima&es and sounds, the e'ecution of %ro&rams, the recordin& of ima&es, sounds or %ro&rams by %arties other than s%ecified %arties, =U>"5 As e'%lained in the commentary1*2, this sub:%ara&ra%h addresses the %roblem of unauthori8ed descramblin& of %ay:$? services" !t therefore %rohibits as an act of unfair com%etition the distribution (etc" of circumventin& device 3that unscrambles the scramblin& %ut on subscri%tion satellite broadcasts, subscri%tion cable broadcasts and %ay %er view services so that those %ersons other than those who are in a contract are not able to view that content"5 Art" 11(1 (@ AUCL further %rovides for an e'ce%tion to the &eneral %rohibition which ma)es lawful to distribute devices used for testin& or researchin& on technolo&ical %rotection measures in order to foster the develo%ment of better technolo&ical %rotection measures1*1"
1(, 1(0

As translated by Mr" Schlesin&er" $hus, im%lyin& a certain overla%%in& between the CL and the AUCL" 1*2 As translated by Mr" Schlesin&er" 1*1 $his e'ce%tion can be com%ared to P 1621 (C DMCA"

7@

;II* Australia
As an introductory remar), it should be noted that the concern of the Australian authorities was to im%lement art" 11 -C$ in a way more favorable to the users of %rotected wor)s than it has been the case in the United States (the DMCA is more ri&ht holder %rotective
1*6

"

As e'%ressed by an author, technolo&ical %rotection measures are 3the area in which the difference between the U"S" and Australian le&islation is most )eenly felt"5 1*7 Australia has very recently enacted its Di&ital A&enda Act (DAA Co%yri&ht Act of 10*,"
1*#

, which amends the

A* Definition of technological protection measures

Subsection 12(1 defines the technolo&ical %rotection measure as 3a device or %roduct, or a com%onent incor%orated into a %rocess, that is desi&ned, in the ordinary course of its o%eration, to %revent or inhibit the infrin&ement of co%yri&ht in a wor) or other subCect:matter by either or both of the followin& meansD (a by ensurin& that access to the wor) or other subCect matter is available solely by use of an access code or %rocess (includin& decry%tion, unscramblin& or other transformation of the wor) or other subCect:matter with the authority of the owner or licensee of the co%yri&htF (b throu&h a co%y control mechanism"5 Several elements result from this definitionD first, to be %rotected (within the sco%e of a%%lication of the le&al %rotection technolo&ical %rotection measures must be desi&ned 3to %revent or inhibit the infrin&ement of co%yri&ht in a wor)5" $his element directly follows the %rinci%le of art" 11 -C$1*(" Second, the DAA does not ma)e any le&al difference between access and co%y controls measures (3by either or both of the followin& means5
1**

" Bowever, by referrin& only to 3co%y control

mechanism51*@, the DAA e'cludes from its sco%e of a%%lication other technolo&ical %rotection

1*6

/n this issue, see S" Hit8%atric), Co%yri&ht !mbalanceD U"S" And Australian +es%onses to the -!./ Di&ital Co%yri&ht $reaty, 66 4"!"."+" 61#, 66* (6222 (ma)in& the connection between co%yri&ht and trade %olicies and stressin& the difference between the U"S"A", which e'%ort co%yri&ht %roducts, and Australia, which im%orts them " 1*7 S" Hit8%atric), at 667" 1*# Co%yri&ht Amendment (Di&ital A&enda Act 6222 Go" 112, 6222 which came into effect on # March 6221, see atD www"co%yri&ht"com"au<di&italKa&endaKbill"htm" 1*( See above !!!"A"7" 1** -hich is, as seen above !!"C", a &ood technolo&y neutral solution" 1*@ Li)e art" * al" 7 C!SD, see above ?"A"1"

7, measures that would %rotect a&ainst uses of the wor) covered by other e'clusive ri&hts" !n that sense, the DAA is not 3technolo&y neutral5"

.* Definition of the circum"enting technology

$he DAA offers a s%ecific definition of circumventin& technolo&ies (device and services that is also based on the test of 3limited commercially si&nificant %ur%ose other than circumvention5 1*," $his test mi&ht, as already mentioned1*0, be uneasy to a%%ly in %ractice"

C* Infringing acti"ity
$he DAA is desi&ned to tar&et e'clusively %re%aratory activities (that is the business of traffic)in& in circumventin& technolo&y " As accurately e'%ressed, 3there is no offence a%%lyin& to the mere fact of circumvention in the DAB =Di&ital A&enda Bill>, only those individuals and businesses en&a&ed in breaches of the %rovisions for %rofit will be at ris), as o%%osed to anyone violatin& the DMCA for 3%rivate financial &ain5 Q which could, in its face, e'tend to obtainin& a free co%y of a co%yri&hted wor)"51@2" Bowever, the infrin&in& %re%aratory activities are defined very broadly" $hey in %articular e'%ressly include the act of ma)in& the 3circumvention device available online to an e'tent that will affect %reCudicially the owner of the co%yri&ht51@1"

D*

,ceptions to the prohi(ition of circum"ention

$he most notable %articularity of the Australian le&islation is that it %rovides an ori&inal system of e'ce%tions to the %rohibition of the business<traffic in circumventin& technolo&ies" 4'ce%tions to the %rohibition of business<traffic in circumventin& technolo&ies are &ranted 3where the circumvention device or service is used for a %ermitted %ur%ose5 (art" 11*A(7 and (# " $his has the effect of allowin& some le&itimate manufacture, dealin&, advertisin&, su%%ly, etc", of such devices and services in relation to s%ecific e'ce%tions to co%yri&ht owners` e'clusive ri&hts"
1*,

12(1 D 3circumvention device means a device (includin& a com%uter %ro&ram havin& only a limited commercially si&nificant %ur%ose or use, or no such %ur%ose or use, other than the circumvention, or facilitatin& the circumvention, of an effective technolo&ical %rotection measure"5 and 3circumvention service means a service, the %erformance of which has only a limited commercially si&nificant %ur%ose, or no such %ur%ose or use, other than the circumvention, or facilitatin& the circumvention, of an effective technolo&ical %rotection measure"5 1*0 !n connection with the DMCA, and the 4uro%ean Directive (C!SD , see above !?"B"7" and ?"A"7" 1@2 Hit8%atric), at 66#" 1@1 Art" 11*A (vi "

70 $hese 3%ermitted %ur%ose5 e'ce%tions are defined by reference to s%ecific e'ce%tions defined in the Co%yri&ht Act of 10*,1@6" !n order to ma)e sure that the circumventin& device or service is really used for an authori8ed use, the DAA obli&es the %erson, defined as a 39ualified %erson5 1@7, wishin& to ma)e this use to follow a s%ecific formal %rocedure" $he su%%ly of a circumvention device or service to a %erson for a %ermitted %ur%ose can be accom%lished if the 39ualified %erson5 %rovides the su%%lier with a si&ned declaration containin& several informationD the %erson`s name and address, the basis on which they are a 9ualified %erson, the name and address of the su%%lier, a statement that the device or service is to be used for a %ermitted %ur%ose, and identification of that %ur%ose by reference to a s%ecific section of the Co%yri&ht Act" $he declaration must also include a statement that the wor) or other subCect : matter in relation to which the device or service is re9uired is not readily available in a form not %rotected by a technolo&ical %rotection measure1@#" As a concludin& remar), it can be noted that the Australian system is 9uite ori&inal, but it remains to be seen whether it will be efficient and wor)able in %ractice" $he main %roblem is that the users of the circumventin& technolo&ies could si&n the re9uired declaration statin& that they will use the technolo&ies only for %ermitted %ur%oses and later use these technolo&ies for unlawful %ur%oses1@(" !n that case, the su%%liers of the circumventin& technolo&ies (devices or services will not be held liable because of the valid declaration obtained from the users" And the users themselves cannot be held liable for theirs acts of circumvention, because these acts are outside the sco%e of the DAA"

;III* Conclusion
!t results from the analysis of the different le&islations im%lementin& art" 11 -C$ that there are as many solutions as there are nations" $he com%le'ity of (at least some of these le&islations
1@6

Art" #@D" +e%roducin& com%uter %ro&rams to ma)e intero%erable %roductsF #@4" +e%roducin& com%uter %ro&rams to correct errorsF #@H" +e%roducin& com%uter %ro&rams for security testin&F #,A" Co%yin& by .arliamentary libraries for members of .arliamentF #0" Co%yin& by libraries and archives for usersF (2" Co%yin& by libraries or archives for other libraries or archivesF (1A" Co%yin& of wor)s for %reservation and other %ur%osesF 1,7" Use of co%yri&ht material for the services of the Crown" 1@7 $he notion of 39ualified %erson5 refers to the s%ecific %rovisions on co%yri&ht e'ce%tions mentioned in the %revious footnoteF in short, a 39ualified %erson5 is the beneficiary of these e'ce%tions" 1@# $his re9uirement has the %ur%ose to ma)e sure that circumventin& technolo&y can only be %rovided if there is no other way for the user to &et access to the wor) at issue in order to e'ercise one of the s%ecified e'ce%tions to co%yri&ht law under the Co%yri&ht act" 1@( Strowel<Dussolier, at 66"

#2 further confirms the difficulties connected with the ma)in& of efficient technolo&y:related re&ulations1@*" $his is %robably best demonstrated by the system of the rulema)in& %rocedure instituted by the DMCA, which does not a%%ear to be the %erfect tool to monitor this issue1@@" $he 9uestion therefore arises to )now whether im%lementin& a s%ecific co%yri&ht:related anti: circumvention re&ulation is really the best way to %roceed1@," Bowever, even if the decision were made that no s%ecific co%yri&ht:related %rotection a&ainst circumvention is needed 1@0, the %roblem of the access to co%yri&ht %rotected wor)s for non:infrin&in& uses (fair uses will remain, because co%yri&ht owners are already %rotected a&ainst unauthori8ed access to their wor)s by &eneral (non co%yri&ht:s%ecific le&al instruments (in the 4uro%ean Union, the Conditional Access Directive " $his means that in any case a solution must be found to this 9uestion, which will re9uire to stri)e a balance between the interests of the authors to create and ma)e their wor)s available in a di&ital format 1,2 and the interests of the %ublic to &ain access to their wor)s and to use them under reasonable contractual conditions1,1" $his demonstrates the close connection e'istin& between technolo&ical %rotection measures and contractual %rotection in the di&ital world" Combined with technolo&ical %rotection measures, contractual a&reements
1@*

As an e'am%le, a %roblem mi&ht result from the mer&er of technolo&ical %rotection measures (%rotected by art" 11 -C$ with the 3+i&hts Mana&ement !nformation5 (+M!, %rotected by art" 16 -C$ and im%lemented in the U"S"A" by 1@ U"S"C" P 1626F see definitions in these %rovisions F this mer&er of functions is already reali8ed (see the Macrovision`s SafeDiscN and SafeCastatechnolo&ies, which %rovide both 3effective anti:%iracy and com%rehensive ri&hts mana&ement solutions5 for software %roducts at htt%D<<www"macrovision"com<cst"html F at %resent, the business of traffic)in& in technolo&ies which would allow users to circumvent and %irate information contained in the +M! (for instance modifyin& the conditions of use or the amount of the license fee is not covered by the %rohibition of art" 11 -C$, because these identification technolo&ies (+M! do not !irectly %rotect any e'clusive ri&hts (there is no 3ri&ht to a +M!5 and therefore do not fit in the definition of technolo&ical %rotection measures %rotected by this %rovisionF this )ind of circumvention mi&ht however %rove to be the most fre9uently used in the future" 1@@ See above !!!"B"6" 1@, As seen above !!!"B"1", this is not re9uired by art" 11 -C$" 1@0 $his a%%roach seems to be %referred by some s%ecialists, see Dussolier, at 60( (who su%%orts a &eneral com%uter crime le&islation F this )ind of le&islation mi&ht however also %rove to be 9uite difficult to im%lement, due to stron&ly diver&in& interests, as this can be seen from the tumultuous ado%tion %rocedure of the future international Convention on Cyber:crime %re%ared by the Council of 4uro%e (which has already been redrafted 6( times, see the 6(th version dated Aanuary 0, 6221 at htt%D<<conventions"coe"int<F see also Moelman<Belber&er, at (0 (wonderin& whether a le&al %rotection of technolo&ical %rotection measure is necessary at all " 1,2 $hey will &enerally do it only if they can rely on sufficient %rotections (technolo&ical %rotection measures as well as sufficient le&al %rotection a&ainst circumvention " 1,1 See already $homas C" ?inCe, A Brave Gew -orld of $echnical .rotection SystemsD -ill $here Be +oom Hor Co%yri&ht;, 1, 4"!"."+" #71 (100* F $his %roblem of unreasonable licensin& terms has been discussed by the Librarian of Con&ress in the course of the rulema)in& %rocedure under P 1621 (see !?"B"6 above F the Librarian of Con&ress has admitted that 3if co%yri&ht owners flatly refuse to ne&otiate licensin& terms that users need in order to en&a&e in noninfrin&in& uses, an e'em%tion =to the %rohibition of circumvention of access %rotection measures> may be Custified"5 *( Hed" +e&" *#(*7"

#1 mi&ht indeed reduce or even totally eliminate the freedom of users to enCoy the e'ce%tions &ranted either by co%yri&ht law1,6 or by the anti:circumvention %rovisions1,7" As a final word, the %otential difficulties resultin& from the a%%lication of the anti:circumvention %rovisions of these le&islations mi&ht %erha%s remain 9uite theoretical" As formulated by a scholar and as illustrated in %ractice1,#, 3if content %roviders come to believe that a &ood business model is the best way to %rotect intellectual %ro%erty from mar)et:destructive a%%ro%riations, %erha%s the current debate over the DMCAJs anti:circumvention re&ulations will seem in time li)e a tem%est in a tea%ot"51,( !n any case, it is still too early to %redict the %recise im%act of these le&islations"

1,6

/n this issue, see the recent article of ." Bernt Bu&enholt8, Co%yri&ht, Contract and CodeD -hat will +emain of the .ublic Domain;, 6* Broo)lyn A" !nt`l L" @@ (6222 and Moelman<Belber&er, at 72:71" 1,7 Co%yri&ht holders mi&ht contractually %rohibit the users from benefitin& from the e'ce%tions to the %rohibition of circumvention of technolo&ical %rotection measures as defined in the le&islation or in the on:&oin& rulema)in& %rocedure ((for the DMCA, see !?"B"6 and !?"D" above " 1,# Hor instance, see the 3%roactive5 attitude towards hac)in& ado%ted by the Le&o com%anyF 3Le&oD A Bac)er`s Best Hriend5 (Gov" @, 6222 , at htt%D<<www"wired"com<news<culture<2,16,#,70(2#,22"htmlF Le&o has o%ened u% the Mindstorms %ro&rammin& source code and develo%ed a 3Software Develo%er Mit License A&reement5, see at htt%D<<mindstorms"Le&o"com<sd)6<SDM"as%" 1,( Samuelson (1000 , at (*(F see also 4" Schlachter, $he !ntellectual .ro%erty +enaissance in Cybers%aceD -hy Co%yri&ht Law Could Be Unim%ortant on the !nternet, 16 Ber)eley $ech" L" A", 1( (100@ "